UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

NATIVE AMERICAN COUNCIL OF TRIBES, BLAINE BRINGS PLENTY, BRIAN DUBRAY, and CLAYTON CREEK,

Case: 4:09-cv-04182-KES

Plaintiffs, v.

STATEMENT OF INTEREST OF THE UNITED STATES

DOUGLAS WEBER, Warden of the South Dakota State Penitentiary, and TIMOTHY REISCH, Secretary of the South Dakota Department of Corrections,

Defendants.

I. INTRODUCTION The United States files this statement of interest, pursuant to 28 U.S.C. § 517, because this litigation implicates the proper interpretation and application of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc (RLUIPA). Congress gave both private plaintiffs and the United States the authority to bring suit to protect the federal religious rights of individuals confined to institutions. See 42 U.S.C. § 2000cc-2(f). Accordingly, the United States has a strong interest in ensuring that RLUIPA’s requirements are vigorously and uniformly enforced. The South Dakota State Penitentiary (SDSP) and the South Dakota Department of Corrections (DOC) deny Native American prisoners access to

tobacco for use in religious services. SDSP began denying tobacco use to Native American prisoners in October 2009, when it instituted a total ban on tobacco. At trial, there was conflicting evidence on the importance of tobacco use in Native American religious rituals. See defs.’ post trial br. at 4-6 (“It is undisputed that Native American spiritual leaders disagree whether it is essential to use tobacco in the ceremonial pipe or in tobacco ties”). Defendants contend that, although there is conflicting evidence on the importance of tobacco use in Native American religious exercise, the total tobacco ban does not substantially burden Native American religious practice.1 See defs.’ post trial br. at 16-21.
Defendants’ position is contrary to the plain language of RLUIPA, Supreme Court precedent, and the position the United States has previously taken on this issue. See 42 U.S.C. § 2000cc-5(7)(A); see also Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 886-87 (1990); statement of interest of the United States filed in Limbaugh v. Thompson, Civ. No. 2:93-cv1404-WHA (M.D. AL), pp. 4-8 (available at http://www.justice.gov/crt/about/spl/ documents/limbaugh_SOI_04-08-11.pdf). Defendants’ argument that plaintiffs are not substantially burdened by the tobacco ban is, in actuality, a request for a judicial determination of the importance and centrality of tobacco use to the plaintiffs’ religious practice. This determination, however, is explicitly forbidden by RLUIPA and relevant case law, and this court should decline to undertake such a task.
1 In their post trial brief, defendants also argue that the tobacco ban furthers a compelling government interest and is the least restrictive means of advancing that interest. The United States does not address either of those arguments in this statement of interest.

II. BACKGROUND Plaintiffs are the Native American Council of Tribes (“NACT”) and Native American prisoners2 at the South Dakota state prison who, before October 2009, were allowed by SDSP and the DOC to use tobacco in religious ceremonies. See defs.’ post trial br. at 13-14. When defendants instituted the tobacco ban in October 2009, defendants stated that they were doing so because tobacco was not “traditional” to Native American religious practice. In a letter dated October 19, 2009, announcing the total ban on tobacco, Warden Weber wrote to the local Native American community that certain spiritual leaders “have brought to our attention that tobacco is not traditional to the Lakota/Dakota ceremonies . . . .” Defs.’ Ex. 103. Additionally, in an e-mail to DOC staff, SDSP Associate Warden Jennifer Wagner wrote that “[w]hen inmates come to you to complain [about the tobacco ban] please remind them that we are honoring the request of the respected Medicine Men and are going back to their traditional ways.” Defs.’ Ex. 108. On December 9, 2009, shortly after defendants instituted the ban on tobacco, plaintiffs filed suit. Trial was held in district court for the District of South Dakota March 27, 28, and 29, 2012. At trial, plaintiffs introduced evidence of the importance of tobacco to Native American religious practice. See trial tr. at 51:10-52:3; trial tr. at 84:5-12;
2 Plaintiffs are practitioners of Lakota spirituality. Lakota is part of a confederation of Sioux tribes whose land lies in North and South Dakota. The largest percentage of Native American population at SDSP is comprised by Lakota, Dakota, and Nakota. For the purpose of this statement of interest, the term “Native American” is used to define plaintiffs and other similarly situated.

trial tr. at 153:13-154:3; trial tr. at 389:17-23. Indeed, defendants concede that some Native American spiritual leaders believe that tobacco use is essential in Native American religious rituals. See defs.’ post trial br. at 4-6 (“It is undisputed that Native American spiritual leaders disagree whether it is essential to use tobacco in the ceremonial pipe or in tobacco ties”); defs.’ post trial br. at 21 (“Here, the record establishes that for some Lakota, a mixture of tobacco and cansasa is used in spiritual ceremonies, for others, only cansasa is used”). Warden Weber acknowledged at trial that “there are differing opinions out there from different medicine men” regarding the use of tobacco. See trial tr. at 577:21-22.
III. ARGUMENT RLUIPA provides persons in institutional settings with an important framework for challenging restrictions on their religious exercise. Under the statute, when a plaintiff shows that a governmental authority has placed a substantial burden on the plaintiff’s religious exercise, the governmental authority must prove that the restrictions further a compelling government interest and that the means used to restrict religious exercise is the least restrictive alternative. 42 U.S.C. § 2000cc-2(b). The Eighth Circuit has made it clear that “[b]y enacting RLUIPA, Congress established a statutory free exercise claim encompassing a higher standard of review than that which applied to constitutional free exercise claim.” Gladson v. Iowa Dep’t of Corr., 551 F.3d 825, 832 (8th Cir. 2009).

Once a prisoner produces prima facie evidence to support a claim by showing that a government practice has substantially burdened the prisoner’s exercise of religion, the government then bears the burden of persuasion on every other element of the RLUIPA claim. Van Wyhe v. Reisch, 581 F.3d 639, 649 (8th Cir. 2009). To do so, the government must show that the total ban on tobacco is in actual furtherance of a cited compelling interest – a tangential or tenuous relationship between the policy and the interest is insufficient. See 42 U.S.C. § 2000cc-1(a); see also 146 Cong. Rec. 16698, 16699 (2000) (joint statement of Sens. Hatch and Kennedy on RLUIPA) (hereinafter joint statement) (“[I]nadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the act’s requirements” (quoting S. Rep. 103-11 at 10 (1993))); Spratt v. Rhode Island Dep’t of Corr., 482 F.3d 33, 39 (1st Cir. 2007) (“[M]erely stating a compelling interest does not satisfy the [State’s] burden on this element of RLUIPA”).
Defendants must also show that burdening of religious exercise is the least restrictive means of furthering the compelling governmental interest. In order to meet their burden under this element of the RLUIPA analysis, defendants must demonstrate that they have considered and rejected less restrictive alternatives. See, e.g., Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 989 (8th Cir. 2004) (“It is not clear that MDOC seriously considered any other alternatives, nor were any explored before the district court.”); see also Warsoldier v. Woodford, 418 F.3d

989, 99 (9th Cir. 2005) (“CDC cannot meet its burden to prove least restrictive means unless it demonstrates that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice”).
If the alternatives suggested by the plaintiff are employed elsewhere, defendants must show why these alternatives cannot be implemented to accommodate the plaintiff’s request. See Spratt, 482 F.3d at 42 (Although “evidence of policies at one prison is not conclusive proof that the same policies would work at another institution,” absent significant differences between the defendant system and the federal prison system, federal Bureau of Prisons policy is relevant); Warsoldier, 418 F.3d at 1000 (“[W]e have found comparisons between institutions analytically useful when considering whether the government is employing the least restrictive means. Indeed, the failure of defendant to explain why another institution with the same compelling interests was able to accommodate the same religious practices may constitute a failure to establish that defendants was using the least restrictive means.”); see also Procunier v. Martinez, 416 U.S. 396, 414 n.14 (1974) (“[T]he policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction”).
In demonstrating why a less restrictive alternative is unworkable, defendants must show that their concerns are based on real evidence and not “grounded on mere speculation, exaggerated fears, or post-hoc rationalizations.” joint statement, 146 Cong. Rec. at 16699; see also Warsoldier, 418 F.3d at 1000

(“[P]rison officials must set forth detailed evidence, tailored to the situation before the court, that identified the failing in the alternatives advanced by the prisoner”).
Here, defendants contend that the tobacco ban does not substantially burden plaintiffs’ religious exercise, and they also argue that the tobacco ban furthers a compelling government interest and is the least restrictive means of furthering that interest. In this statement of interest, the United States only addresses defendants’ argument that plaintiffs’ religious exercise is not substantially burdened by the ban on tobacco. Defendants’ argument, like the holdings of the courts upon which the argument depends, requires a determination about the centrality or importance of tobacco use in Native American religious tradition, a determination that is expressly forbidden by RLUIPA and Supreme Court precedent.
RLUIPA guarantees a right to “religious exercise,” which it defines as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); see also Van Wyhe v. Reisch, 581 F.3d 639, 656 (8th Cir. 2009) (“RLUIPA’s broad protection of ‘religious exercise’ extends even to religious practices that are not ‘compelled by, or central to’ a certain belief system) (citations omitted). This is consistent with the First Amendment’s requirement that courts are not to judge the merits or centrality of specific religious practices. See Emp’t Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 886-87 (1990) (“Repeatedly and in many different contexts, we have

warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim”); Presbyterian Church v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 450 (1969) (holding that the First Amendment “forbids civil courts” from the “interpretation of particular church doctrines and the importance of those doctrines to the religion”); Fowler v. Rhode Island, 345 U.S. 67, 70 (1953) (“it is no business of the courts to say that what is a religious practice or activity is not religion under the protection of the First Amendment”); Vetter v. Farmland Indus., 884 F. Supp. 1287, 1306 (N.D. Iowa 1995) (a court may not determine which practices are mandated or prohibited by a tenet of the religion; the court may neither determine what the tenets of a particular religion are, nor decide whether a particular practice is or is not required by the tenets of a religion). The only appropriate avenue for judicial inquiry is whether an institution’s policy interferes with an exercise of a religion. Whether the practice is universal to adherents of a particular faith is of no consequence. See Thomas v. Review Bd., 450 U.S. 707, 715-16 (1982) (finding that even under the less protective First Amendment free exercise doctrine, “… it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.”).3 Courts must apply a broad, inclusive standard
3 Of course, courts are permitted to examine the sincerity of religious belief under RLUIPA. Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (“[RLUIPA] does not preclude inquiry into the sincerity of a prisoner’s professed religiosity.”).

when determining whether a religious exercise is burdened, rather than conducting their own assessments of the importance of the exercise.
In instituting the tobacco ban, defendants appear not to have applied the broad, inclusive standard of religious exercise required by RLUIPA. Instead, defendants based their decision, at least in part, on the determination that tobacco use is not “traditional” to Native American religious exercise. RLUIPA’s broad protection of religious exercise prohibits defendants from engaging in this judgment, however; defendants may not determine what is “traditional” or “orthodox” within a certain religious tradition. Cf. Grayson v. Schuler¸ 666 F.3d 450, 453-55 (7th Cir. 2012) (“Prison officials may not determine which religious observances are permissible because orthodox”) (citations omitted).
Likewise, courts are also prohibited from determining what is essential to a religious practice or tradition. During the trial in this case, plaintiffs and defendants spent an extensive amount of time arguing about whether tobacco use is important to Native American religious exercise. As Congress recognized in crafting RLUIPA, however, and as the Supreme Court has repeatedly stated, this is not a justiciable inquiry. See 42 U.S.C. § 2000cc-5(7)(A); Thomas, 450 U.S. at 715-16. Indeed, defendants acknowledge that “Native American spiritual leaders disagree whether it is essential to use tobacco in the ceremonial pipe or in tobacco ties,” see defs.’ post trial br. at 4-6, but they nevertheless argue that this court can decide that the tobacco ban does not substantially burden plaintiffs’ religious exercise. See defs.’ post trial br. at 16-21. The court should decline this

invitation to determine the importance of tobacco use to practitioners of Native

American religions. Smith, 494 U.S. at 886-87. Accordingly, the court should

also reject defendants’ argument that they have not placed a substantial burden

on plaintiffs’ religious exercise.

IV. CONCLUSION

For the foregoing reasons, the court should reject defendants’ position that

plaintiffs’ religious exercise is not substantially burdened by the tobacco ban,

because this position depends on an inquiry that is prohibited by RLUIPA and

Supreme Court precedent.

Date: July 10, 2012

Brendan V. Johnson United States Attorney District of South Dakota

Thomas E. Perez Assistant Attorney General Civil Rights Division

____________________ Timothy D. Mygatt (PA Bar # 90403) Verlin Deerinwater (OK Bar #011874) U.S. Department of Justice Civil Rights Division 601 D Street NW Room 5928 Washington, DC 20004 (202) 514-6260 (phone) (202) 514-6273 (fax) verlin.deerinwater@usdoj.gov Attorneys for the United States

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on July 10, 2012, a true and correct copy of the foregoing was served upon the following person(s), by placing the same in the service indicated, addressed as follows:

Pamela R. Bollweg Ronald A. Parsons, Jr. Sara E. Show James Ellis Moore

☐ US mail ☐ FedEx ☒ ECF ☐ hand delivered ☐ faxed

_____________________________________ Diana Ryan Assistant United States Attorney

 
 No. 13-1401
IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _________________
NATIVE AMERICAN COUNCIL OF TRIBES, et al.,
Plaintiffs-Appellees
v.
DOUGLAS WEBER, et al.,
Defendants-Appellants _________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA _________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES AND URGING AFFIRMANCE _________________
THOMAS E. PEREZ Assistant Attorney General
MARK L. GROSS APRIL J. ANDERSON Attorneys Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 616-9405

TABLE OF CONTENTS
PAGE
INTEREST OF THE UNITED STATES ..................................................................1
STATEMENT OF THE ISSUES AND APPOSITE CASES ...................................2
STATEMENT OF THE CASE..................................................................................3
STATEMENT OF THE FACTS ...............................................................................3
1. Facts ......................................................................................................3
2. Procedural History................................................................................8
SUMMARY OF ARGUMENT ...............................................................................10
ARGUMENT
I THE DISTRICT COURT PROPERLY REJECTED PRISON OFFICIALS’ CLAIM THAT THE PRISON MAY BAR RITUAL TOBACCO USE IT DEEMS UNORTHODOX OR “NOT TRADITIONAL” .....................................................................12
II THE DISTRICT COURT PROPERLY EVALUATED PRISON OFFICIALS’ ARGUMENTS THAT THERE WERE NO LESS RESTRICTIVE ALTERNATIVES TO THE TOTAL TOBACCO BAN ..................................................................................................... 17
CONCLUSION ........................................................................................................31
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES:

PAGE

Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004) ............. 19, 23-24

Benning v. Georgia, 391 F.3d 1299 (11th Cir. 2004)..............................................18

Cutter v. Wilkinson, 544 U.S. 709 (2005) ........................................................passim

Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872 (1990)........................................................................... 14, 17-18

Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) ......................................2, 23, 26, 29

Fowler v. Crawford, 534 F.3d 931 (8th Cir. 2008), cert. denied, 129 S. Ct. 1585 (2009)............................................19, 24, 28, 30

Gladson v. Iowa Dep’t of Corr., 551 F.3d 825 (8th Cir. 2009).....................2, 13, 17

Grayson v. Schuler, 666 F.3d 450 (7th Cir. 2012) ..............................................9, 15

Hamilton v. Schriro, 74 F.3d 1545 (8th Cir.), cert. denied, 519 U.S. 874 (1996)...........................................................passim

Hernandez v. Commissioner, 490 U.S. 680 (1989)...........................................13, 16

Koger v. Bryan, 523 F.3d 789 (2008).......................................................... 14-15, 25

Murphy v. Missouri Dep’t of Corr., 372 F.3d 979 (8th Cir.), cert. denied, 543 U.S. 991 (2004)............................................................19, 27

Newingham v. Magness, 364 F. App’x 298 (8th Cir. 2010)....................................15

Procunier v. Martinez, 416 U.S. 396 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989).......................................................................................23

Spratt v. Rhode Island Dep’t of Corr., 482 F.3d 33 (1st Cir. 2007)............ 10, 25-27

-ii-

CASES (continued):

PAGE

Turner v. Safley, 482 U.S. 78 (1987).......................................................................26

United States v. Seeger, 380 U.S. 163 (1965) .........................................................14

United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011)........................................20

Van Wyhe v. Reisch, 581 F.3d 639 (8th Cir. 2009), cert. denied, 130 S. Ct. 3323 (2010), and 131 S. Ct. 2149 (2011) ............2, 13

Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ...................................passim

Washington v. Klem, 497 F.3d 272 (3d Cir. 2007)..................................................20

World Outreach Conference Ctr. v. City of Chi., 591 F.3d 531 (7th Cir. 2009) .........................................................................18

STATUTES:

Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc ......................................................................................... 1-2 42 U.S.C. 2000cc-1(a) .....................................................................................3 42 U.S.C. 2000cc-1(a)(2) ..............................................................................18 42 U.S.C. 2000cc-2(a) .....................................................................................1 42 U.S.C. 2000cc-2(b) .............................................................................13, 18 42 U.S.C. 2000cc-2(f)......................................................................................2 42 U.S.C. 2000cc-5(2) .............................................................................13, 18 42 U.S.C. 2000cc-5(7)(A) ......................................................................passim

Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. .................................................................................3 42 U.S.C. 2000bb...........................................................................................21

LEGISLATIVE HISTORY:

Hearing on Protecting Religious Freedom After Boerne v. Flores Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong., 2d Sess., Pts. 2-3 (1998) .........................................21

-iii-

LEGISLATIVE HISTORY (continued):

PAGE

146 Cong. Rec. 16,700 (2000) .................................................................................24

-iv-

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _________________ No. 13-1401
NATIVE AMERICAN COUNCIL OF TRIBES, et al., Plaintiffs-Appellees
v. DOUGLAS WEBER, et al.,
Defendants-Appellants _________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA _________________ BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES AND URGING AFFIRMANCE _________________
INTEREST OF THE UNITED STATES The Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc, protects prisoners’ rights to religious expression. It bars state prison officials from substantially burdening inmates’ religious exercise unless the restrictions are the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. 2000cc-2(a). Congress gave both private plaintiffs and the

-2United States the authority to sue to enforce RLUIPA. See 42 U.S.C. 2000cc-2(f). Accordingly, the United States has a strong interest in ensuring that RLUIPA’s requirements are properly and uniformly enforced.
STATEMENT OF THE ISSUES AND APPOSITE CASES 1. Whether prison administrators substantially burdened inmates’ religious exercise, in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc, when they decided tobacco use was “not traditional” in Native American Lakota worship and banned its use in religious ceremonies. Cutter v. Wilkinson, 544 U.S. 709 (2005) Gladson v. Iowa Dep’t of Corr., 551 F.3d 825 (8th Cir. 2009) Van Wyhe v. Reisch, 581 F.3d 639 (8th Cir. 2009) 42 U.S.C. 2000cc-5(7)(A) 2. Whether prison administrators failed to show there were no less restrictive alternatives to a total tobacco ban.1 Cutter v. Wilkinson, 544 U.S. 709 (2005) Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005)
1 We will not address other aspects of this appeal.

-3STATEMENT OF THE CASE RLUIPA prohibits state and local governments from imposing “a substantial burden on the religious exercise of a person residing in or confined to an institution” unless the government shows that the burden furthers “a compelling governmental interest” and does so by “the least restrictive means.” 42 U.S.C. 2000cc-1(a). The statute thus “protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). It imposes the same obligation on state prison officials to accommodate religious liberties as federal prison officials have under the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. It was the intent of RLUIPA’s drafters that RLUIPA be construed consistent with RFRA and against the background of the Federal Bureau of Prisons’ (BOP’s) experience administering RFRA. See Cutter, 544 U.S. at 725726. STATEMENT OF THE FACTS 1. Facts Native Americans use tobacco in their traditional rituals, either to make prayer offerings (called tobacco ties and tobacco flags) or to smoke in a sacred

-4pipe. Add. 7-11.2 Many practitioners consider tobacco essential to native worship. Add. 7-13. One witness in this case said removing tobacco from ceremonies is “almost like taking a Bible away from the church.” Add. 11; Tr. 51, Doc. 170 at 51. He also explained that “[e]ach [tobacco] tie represents a certain prayer” and compared them to beads on a rosary. Tr. 53, Doc. 170 at 53. Prison officials have acknowledged that “tobacco is important to [plaintiffs’] religion.” Add. 15, 20. About 27% of South Dakota’s prison population is Native American. Add. 3.
Before 1998, any inmate in the South Dakota prison system was allowed to smoke. In 2000, South Dakota banned all tobacco use in its prisons, except for ritual use in Native-American ceremonies. Add. 3. In 2004, prison officials consulted various traditional Native-American religious leaders and concluded that it would change the tobacco mixture allowed in ceremonies to 50% tobacco and 50% red willow bark. Add. 4. In 2003 or 2005, prison officials changed their policy of allowing Native-American practitioners to keep tobacco in their cells and instead required that it be checked out from a prison office for ceremonies. Add. 3-4. In 2005 prison officials further decreased the tobacco in the mixture to 25% and then, in 2009, banned all tobacco use. Add. 5; Exh. 133. They did not
2 “Doc. _” refers to documents filed in the district court by docket number. “Tr. _” refers to pages in the consecutively paginated trial transcript. “Exh.” refers to exhibits filed at trial. “Br. _” refers to pages in the defendants’ opening brief. “Add. _” refers to pages in the defendants’ addendum filed concurrently with the opening brief.

-5consider further diluting the tobacco blend, for example to 10%. Tr. 310, Doc. 170-1 at 105.
Prison officials identified security concerns supporting the ban, as tobacco was being traded in a black market in the prison. Add. 16. During the time when Native-American practitioners were allowed to use tobacco, and especially when they were allowed to keep it in their cells, the tobacco was sometimes used outside of ceremonies. Add. 16-17; Tr. 137, Doc. 170 at 137; Tr. 551, Doc. 170-2 at 86; Tr. 551, Doc. 170-2 at 86. When it was mixed with red willow bark, inmates would pick out or sift out the tobacco. Add. 17, 39 & n.26; see also Tr. 188, Doc. 170 at 188; Tr. 234, Doc. 170-1 at 29. In one instance, ceremonial tobacco was stolen from a prison office where it was stored between ceremonies. Tr. 464, Doc. 170-1 at 259; Tr. 561, Doc. 170-2 at 96.
To control contraband, the prison conducts random searches, strip searches all inmates after they visit with outsiders, and keeps dogs trained to detect tobacco and other substances. Tr. 541, Doc. 170-2 at 76; Tr. 596, Doc. 170-2 at 131. Guards did not directly supervise prisoners making tobacco ties. Tr. 254, Doc. 170-1 at 49. Instead, the guards used a camera system and sometimes searched inmates after ceremonies. Tr. 97, Doc. 170 at 97; Tr. 316, Doc. 170-1 at 111.
Despite these precautions, prison officials cited several cases of tobacco smuggling. Many involved commercial tobacco, rather than the ceremonial mix

-6-
brought into the prison for Native-American ceremonies. Add. 16, 28-29; Tr. 94, 139, Doc. 170 at 94, 139. Visitors, volunteers, and employees brought illicit tobacco into the prison. Tr. 94, Doc. 170 at 94; Tr. 235, Doc. 170-1 at 30; Exh. 133. In most cases they cited, defendants did not show whether tobacco contraband came from Native-American ceremonies or from other sources. Tr. 186, Doc. 170 at 186; Tr. 280, Doc. 170-1 at 75; Tr. 351, Doc. 170-1 at 146; Tr. 551, Doc. 170-2 at 86. After the tobacco ban, tobacco trafficking was still a problem. Tr. 235, Doc. 170-1 at 30; Tr. 591, Doc. 170-2 at 126. Officials claimed that there were “[l]ess write-ups” for tobacco after the ban, but they did not give numbers to show how many incidents occurred before and after the ban. Tr. 257, Doc. 170-1 at 52; Add. 29. The record establishes that commercial tobacco unrelated to Native-American worship was traded and continues to be traded as contraband. Tr. 235, Doc. 170-1 at 30; Tr. 590-591, Doc. 170-2 at 125-126.
Prison officials also explained that they decided to ban tobacco on the advice of Native-American spiritual leaders. Add. 15. An Associate Warden said that she “decided to follow the advice of the respected medicine men and spiritual leaders and remove tobacco from Native American ceremonies.” Add. 15 (citation omitted). The Warden sent a letter to tribal liaisons, explaining that
tobacco is not traditional to the Lakota/Dakota ceremonies and * * * is too addictive to be used for ceremonies. [Spiritual leaders] have requested that tobacco be removed from Native American Ceremonies so that the

-7participants of these ceremonies will focus on their spiritual paths and not abusing [sic] the tobacco. Add. 18 (quoting Exh. 103). One prison official advised other officials that “[w]hen inmates come to you to complain, please remind them that we are honoring the request of the respected Medicine Men and are going back to their traditional ways.” Add. 19 (emphasis and citation omitted). At trial, the Warden admitted “there are differing opinions from various medicine men,” and that not all tribal leaders supported the ban. Add. 18. Prison officials also stated they considered other prisons’ practices before banning the tobacco. An Associate Warden said she looked into practices in Minnesota (which allows Native Americans to use some tobacco) and Nebraska (which does not allow tobacco). Tr. 237, Doc. 170-1 at 32; Exh. 3. She spoke to officials at Minnesota’s prison system about their policies. Tr. 237-238, 287-288, Doc. 170-1 at 32-33, 82-83; Tr. 583, 590, Doc. 170-2 at 118, 125. At trial, she explained that she had recently learned North Dakota did not allow tobacco. Tr. 237, Doc. 170-1 at 32. Many other prisons allow ritual tobacco use. The BOP requires each of its institutions to develop procedures to accommodate Native-American practices, including designating areas authorized for tobacco use and procedures for “procuring, storing, and using tobacco for rituals.” Doc. 173-1 at 21. Minnesota allows limited amounts of tobacco during “scheduled events” in “designated secure

-8-
location[s],” such as the sweat lodge or religious resource center. Exh. 3; Tr. 26, Doc. 170 at 26. It allows inmates to carry tobacco if it is “permanently shut” in medicine bags or tobacco ties, otherwise tobacco must be transported by volunteers. Exh. 3; Add. 30. Wisconsin, California, Pennsylvania, West Virginia, and other states also accommodate some ritual tobacco. Doc. 173 at 29-30; Tr. 26, Doc. 170 at 26; Add. 30, 55-56 and cases cited therein. 2. Procedural History
Native-American prisoners at the South Dakota State Penitentiary sued prison officials, claiming violations of RLUIPA.3 Add. 1, 3. They claimed that the tobacco ban substantially burdened their religious expression, and sought injunctive relief to be allowed to use tobacco in supervised religious ceremonies in prison. Add. 2.
The case was tried before a judge. Add. 2; Doc. 170. The United States filed a statement of interest, arguing that prison officials had improperly incorporated their own interpretation of Lakota religion into prison policies. Add. 2. The district court found that the defendants’ tobacco ban “was implemented to effectuate what defendants believed was the advice of the medicine men and
3 Plaintiffs made other claims not at issue on appeal. The Native American Counsel of Tribes (a non-profit organization which helps organize religious ceremonies at the prisons) also sued, but the district court dismissed the organization as a plaintiff in the RLUIPA claim. Doc. 67 at 21-22.

-9spiritual leaders regarding the Lakota religion rather than due to security reasons,” and that “[d]efendants essentially enforced what they determined to be the more ‘traditional’ Lakota belief.” Add. 47. The court ruled that state prison officials may not determine which of plaintiffs’ religious observances were orthodox and therefore “permissible.” Add. 48 (quoting Grayson v. Schuler, 666 F.3d 450, 453455 (7th Cir. 2012)). The court explained that differences among Native-American religious leaders did not weaken plaintiffs’ claims, “because a religious practice does not need to be a universal practice for adherents of a particular faith.” Add. 37.
The court stated that prison officials had presented security concerns, including tobacco’s use on the black market, as justification for the total tobacco ban. Add. 16-17. But the court found that defendants had not shown a compelling governmental interest in banning all tobacco use, and that even if there were such an interest, the prison officials had not shown the prison had chosen the least restrictive means of furthering that interest. Add. 48. The court found that defendants did not “seriously consider” alternatives, such as imposing more restrictive security at ceremonies, further limiting ceremonies that use tobacco, controlling who could transport tobacco to ceremonies, or further reducing the amount of tobacco in the mixture. Add. 48-49.

-10The court pointed out that federal prisons, and other states’ prisons, accommodated religious tobacco use. It reviewed written policies for the BOP and for Minnesota’s prisons, as well as published decisions reviewing other prisons’ accommodation of tobacco. Add. 6 n.7, 30, 54-55; Exh. 3; Doc. 173 at 29-30; Doc. 173-1. The court held that other prisons’ accommodation of ritual tobacco use undermined defendants’ argument that a total tobacco ban was the least restrictive means of controlling contraband in South Dakota’s prisons, “in the absence of any explanation * * * of significant differences” between South Dakota’s prisons and those that permitted ceremonial tobacco. Add. 54-55 (quoting Spratt v. Rhode Island Dep’t of Corr., 482 F.3d 33, 42 (1st Cir. 2007)); see also Add. 30. The district court sought to bring the parties into agreement about how tobacco could be accommodated. Add. 59. When this failed, the court issued a remedial order requiring prison officials to allow limited use of tobacco in sweat lodge ceremonies, pipe ceremonies, and tobacco ties and flags. Add. 60-61, 63-67. The court ruled that a 1% tobacco mixture be permitted, and specified that it could be provided and transported by volunteers rather than kept on site. Add. 63-64.
SUMMARY OF ARGUMENT The district court properly concluded that South Dakota’s prison officials may not base their decision to ban ritual tobacco on their own judgment of whether

-11tobacco use is compelled by, traditional in, or otherwise essential to plaintiffs’ Lakota worship. RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. 2000cc5(7)(A). The statute does not require prisoners to offer doctrinal justifications to support their religious exercise, and state institutions cannot appropriately evaluate doctrinal claims. Instead of dictating what is true or orthodox within a faith, officials may evaluate only whether plaintiffs’ professed belief is truly and sincerely held. Here, even South Dakota prison officials do not question plaintiffs’ claim that tobacco has a place in Native-American rituals and is important to plaintiffs’ religious practices. Accordingly, the prison’s total ban on ritual tobacco use substantially burdens plaintiffs’ religious practices because it significantly constrains their religious conduct.
The court also properly concluded that prison officials had not shown that the total ban on ritual tobacco use is the least restrictive means available for controlling contraband tobacco. A prison may impose a substantial burden on religious conduct in order to protect security or other compelling interests, but it must show its policy is the least restrictive one available and must rebut plaintiffs’ evidence of less restrictive alternatives. Congress imposed RLUIPA’s leastrestrictive-means test to ensure real scrutiny of prison officials’ justifications for failure to adopt less restrictive alternatives.

-12-
Evidence that other prisons routinely accommodate ceremonial tobacco is especially powerful proof that South Dakota’s policies are not the least restrictive ones available. Several state prisons, and the federal prison system, allow ritual tobacco use. Defendants did not explain how their prisons differed from the many which accommodate ritual tobacco use, despite all having the same compelling interest in security and control of contraband. The court properly rejected prison officials’ conclusory statements that such policies would not work in South Dakota.
ARGUMENT I
THE DISTRICT COURT PROPERLY REJECTED PRISON OFFICIALS’ CLAIM THAT THE PRISON MAY BAR RITUAL TOBACCO USE IT DEEMS UNORTHODOX OR “NOT TRADITIONAL”
RLUIPA “protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). It bars prisons from imposing a substantial burden on religious practice unless the prison shows (1) that the burden is justified by a compelling state interest and (2) that there are no less restrictive means available to advance the compelling interest. A prison rule substantially burdens prisoners’ religious exercise if it “significantly inhibits or constrains their conduct

-13or expression” or “meaningfully curtails their ability to express adherence to their faith.” Gladson v. Iowa Dep’t of Corr., 551 F.3d 825, 834 (8th Cir. 2009). Once plaintiffs have shown that a rule substantially burdens their religious practice, the burden of proof shifts to the prison to prove that its policy furthers a compelling governmental interest and does so by the least restrictive means. See 42 U.S.C. 2000cc-2(b), 2000cc-5(2).
RLUIPA protects sincere religious practices even if they are idiosyncratic or unorthodox. “[N]o ‘doctrinal justification’ is required to support the religious practice allegedly infringed,” Gladson, 551 F.3d at 833; see also Van Wyhe v. Reisch, 581 F.3d 639, 657 (8th Cir. 2009) (courts should not “demand doctrinal justification to support the desired religious exercise” in an RLUIPA claim), cert. denied, 130 S. Ct. 3323 (2010), and 131 S. Ct. 2149 (2011). The Supreme Court has stated that government officials are not in a position, constitutionally, to “question * * * the validity of particular litigants’ interpretations of [their] creeds.” Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) (evaluating whether tax laws substantially burdened plaintiff’s religion in violation of the First Amendment).
RLUIPA defines “religious exercise” broadly to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. 2000cc-5(7)(A). Courts enforcing the statute may not decide the relative

-14importance of sincerely held religious tenets or practices. “What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his personal faith?” Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 887 (1990).
Accordingly, while prison officials may “inquir[e] into the sincerity of [the plaintiff’s] professed religiosity,” Cutter, 544 U.S. at 725 n.13 (emphasis added), they may not decide whether a belief system requires a particular practice, see Smith, 494 U.S. at 886-887; see also id. at 887 (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion.”). The Supreme Court has explained in other religion cases that government officials may decide whether “a belief is * * * ‘truly held,’” but not “the ‘truth’ of a belief.” United States v. Seeger, 380 U.S. 163, 185 (1965).
Along these lines, courts have held that RLUIPA broadly protects individual religious practices, regardless of whether the practices are followed by all in the same faith. For example, the Seventh Circuit held that RLUIPA covered an inmate’s request for a vegetarian diet, rejecting officials’ arguments that the prisoner’s religion did not include dietary restrictions. Koger v. Bryan, 523 F.3d 789, 794, 798 (2008). Koger could not meet the prison’s requirement that an application for a religious diet include a letter from “a ‘Rabbi-Imam, etc.,’” or

-15show that his religion, Ordo Templi Orientis, required a special diet. Id. at 794. Some of the faith’s practitioners adopted dietary restrictions individually as a spiritual discipline. Ibid. The court held that, when they rejected Koger’s request, “the prison officials would have required him to establish exactly what RLUIPA does not require – that his requested diet was ‘compelled by’ or ‘central to’ his faith.” Id. at 798 (quoting 42 U.S.C. 2000cc-5(7)(A)). Similarly, the Seventh Circuit has concluded that a prison could not force an inmate to cut his long hair, which he professed his African-Hebrew-Israelite religion required, on the premise that only those whose faith “‘officially’ require[s] the wearing of dreadlocks [may] wear them.” Grayson v. Schuler, 666 F.3d 450, 453 (7th Cir. 2012).
This Court recently rejected similar arguments in Newingham v. Magness, 364 F. App’x 298, 300 (8th Cir. 2010). In that case, a Muslim prisoner believed the Qur’an required him to pray with a prayer rug. Ibid. Prison officials denied his request and relied on their Islamic coordinator’s opinion that “a prayer rug is a ‘convenience,’ not a religious ‘requirement’” for Muslims. Ibid. This Court reversed the district court’s decision in the prison’s favor, holding that RLUIPA does not demand a prisoner give doctrinal justification for his religious exercise. Id. at 300-301.
In this case, prison officials justified their restrictions, at least in part, by concluding that “tobacco is not traditional to the Lakota/Dakota ceremonies.”

-16Add. 18 (citation omitted). Prison officials consulted spiritual leaders, discovered a doctrinal disagreement about tobacco use, and then took a side in the religious debate, claiming “[spiritual leaders] have requested that tobacco be removed from Native American Ceremonies.” Add. 18 (citation omitted). Even though prison officials acknowledged that tobacco has some religious significance for plaintiffs (Add. 15), they claimed they were “honoring the request of the respected Medicine Men and are going back to their traditional ways.” Add. 19 (emphasis and citation omitted). This conclusion is not only incorrect (see Doc. 170 at 51, 80, 84, 153154); it is, more importantly, impermissible. The state contravened the Supreme Court’s mandate that states may not evaluate “the validity of particular litigants’ interpretations of [their] creeds.” Hernandez, 490 U.S. at 699.
The prison officials here impermissibly assessed “[t]he truth of [plaintiffs’] belief,” Cutter, 544 U.S. at 725 n.13 (citation and internal quotation marks omitted), and decided that tobacco use is not “compelled by, or central to” plaintiffs’ “system of religious belief,” 42 U.S.C. 2000cc-5(7)(A). Plaintiffs testified otherwise. Doc. 170 at 80, 84, 153-154. Prison officials may not “presume to determine the place of a particular belief,” such as the importance of tobacco use, in plaintiffs’ religion. Smith, 494 U.S. at 886-887, and may not dictate which practices they believe “will focus [plaintiffs] on their spiritual paths,” Add. 18 (citation omitted).

-17-
Because the state prison imposed its own interpretation of Lakota spirituality on the plaintiffs and banned tobacco, defendants have substantially burdened the sincerely held religious beliefs of plaintiff inmates. Defendants argue that “[t]he tobacco ban is not a substantial burden on the inmates’ ability to practice traditional Lakota spirituality” because inmates may instead use what it deems an acceptable substitute, red willow bark, in their observances. Br. 28. This is precisely the type of religiously-based governmental judgment RLUIPA, and the Constitution, forbid. See 42 U.S.C. 2000cc-5(7)(A). If one accepts the plaintiffs’ beliefs as sincere, and defendants did not rebut plaintiffs’ evidence on this issue, the tobacco ban “significantly inhibits or constrains [the inmates’ religious] conduct or expression.” Gladson, 551 F.3d at 834.
II THE DISTRICT COURT PROPERLY EVALUATED PRISON OFFICIALS’
ARGUMENTS THAT THERE WERE NO LESS RESTRICTIVE ALTERNATIVES TO THE TOTAL TOBACCO BAN
In enacting RLUIPA and predecessor laws, Congress replaced the rational basis scrutiny that would apply to a First Amendment challenge in this context with tougher scrutiny over institutional refusal to accommodate religious practice. See Cutter v. Wilkinson, 544 U.S. 709, 714-717 (2005). Specifically, RLUIPA set up a “least restrictive means” test, incorporating the standard used in religious freedom case law prior to Employment Division, Department of Human Resources

-18-
v. Smith, 494 U.S. 872 (1990). See, e.g., Benning v. Georgia, 391 F.3d 1299, 1306 (11th Cir. 2004); accord World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531, 534 (7th Cir. 2009).
Once an inmate has shown that the prison’s restrictions substantially burden his religious practice, the burden shifts and prison officials must show that the policy furthers a compelling governmental interest and uses the least restrictive means to do so. See 42 U.S.C. 2000cc-1(a)(2), 2000cc-2(b), 2000cc-5(2). Certainly prisons have compelling governmental interests in security and in the safety of prisoners and guards. See Cutter, 544 U.S. at 725 n.13. Controlling contraband is among a prison’s legitimate security concerns. Hamilton v. Schriro, 74 F.3d 1545, 1555 (8th Cir.), cert. denied, 519 U.S. 874 (1996). The question in this case, then, is whether South Dakota has employed the least restrictive means of controlling tobacco contraband.4
Congress assigned prison officials this burden to ensure significant scrutiny of their decisions that restrict religious liberty. This standard, which continues to apply in other First Amendment contexts, requires a court to do more than simply determine whether a government policy plausibly advances a compelling interest
4 It is not the case, as defendants repeatedly state (Br. 2-3, 15) (emphasis added) that allowing tobacco for Native American spiritual ceremonies “created a black market” for tobacco. Tobacco unrelated to Native American worship was and continues to be traded as contraband. Tr. 235, Doc. 170-1 at 30; Tr. 591, Doc. 170-2 at 126.

-19to any degree. Rather, a court, after considering viable alternatives, must verify that the challenged policy imposes the least on religious liberty. As the Supreme Court explained in applying the “least restrictive means” test in the free speech context, “[t]he purpose of the test is not to consider whether the challenged restriction has some effect in achieving” the government’s goal “regardless of the restriction it imposes. The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal.” Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666 (2004). A court “should ask whether the challenged regulation is the least restrictive means among available, effective alternatives.” Ibid. While courts “must give due deference to the expertise of prison officials in establishing regulations to maintain prison safety and security,” Fowler v. Crawford, 534 F.3d 931, 938 (8th Cir. 2008) (citation omitted), cert. denied, 129 S. Ct. 1585 (2009), prison officials must do “more than merely assert a security concern” to meet their burden. Murphy v. Missouri Dep’t of Corr., 372 F.3d 979, 988 (8th Cir.), cert. denied, 543 U.S. 991 (2004). They may not rely on “conclusory statements and post hoc rationalizations for their conduct.” Hamilton, 74 F.3d at 1554 n.10.
A prison does not have to refute every available option. The prisoner bears the burden of showing “what, if any, less restrictive means remain unexplored.” Hamilton, 74 F.3d at 1556. Once the prisoner produces evidence that less

-20restrictive alternatives exist, prison officials must at least show that they have “actually considered and rejected the efficacy of” those alternatives. Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005); see, e.g., Washington v. Klem, 497 F.3d 272, 284 (3d Cir. 2007) (prison “must consider and reject other means before it can conclude that the policy chosen is the least restrictive means”). Where prison officials familiarize themselves with and seriously consider proffered alternatives, and nonetheless reject them, they are entitled to the deference that their expertise and experience warrant. The court is obligated to “ensure that the record supports the conclusion that the government’s chosen method of regulation is least restrictive and that none of the proffered alternative schemes would be less restrictive while still satisfactorily advancing the compelling governmental interests.” United States v. Wilgus, 638 F.3d 1274, 1289 (10th Cir. 2011) (applying the identical standard of RFRA, 42 U.S.C. 2000bb).
Congress, in enacting RLUIPA, was “mindful of the urgency of discipline, order, safety, and security in penal institutions.” Cutter, 544 U.S. at 723. But Congress passed RLUIPA in part because prisons’ rules against contraband sometimes restrict religious practices unnecessarily. Congress reviewed evidence, for example, that Michigan prisons prohibited Chanukah candles, and that facilities in Oklahoma restricted the Catholic use of sacramental wine for celebration of Mass. See Cutter, 544 U.S. at 717 n.5 (citing Hearing on Protecting Religious

-21Freedom After Boerne v. Flores before the Subcommittee on the Constitution of the House Committee on the Judiciary, 105th Cong., 2d Sess., Pt. 3, p. 41 (1998) (statement of Isaac M. Jaroslawicz, Director of Legal Affairs for the Aleph Institute) and id., Pt. 2, at 58-59 (prepared statement of Donald W. Brooks, Reverend, Diocese of Tulsa, Oklahoma)).
In this case, while the court found that the prison officials said their main reason for banning tobacco was their belief it was “not traditional” in Lakota worship (Add. 18, 45) officials also presented evidence of security issues related to contraband tobacco. Add. 16, 28-29. They pointed to problems with prisoners (Indians and non-Indians alike) smuggling in commercial tobacco unrelated to Native-American worship. These instances do not, however, support a total ban on ritual tobacco use. The prison has not shown how a ban on ceremonial tobacco would help the prison control these separate instances of non-ceremonial tobacco smuggled in from outside. See Br. 43 n.16 (noting a recent tobacco violation after the ban).
Admittedly, defendants identified some violations involving ceremonial tobacco. But the incidents were far fewer than defendants would have this Court believe. Once, tobacco intended for ceremonies was stolen from a prison office. Tr. 464, Doc. 170-1 at 259; Tr. 561. While defendants state (Br. 32) that they offered “considerable evidence” of other problems “caused by tobacco associated

-22-
with spiritual ceremonies,” the individual incidents defendants cite mostly involve
contraband that came from either non-religious sources or from unidentified
sources. For example, defendants claim that inmates Brings Plenty and Creek
were disciplined for “possessing tobacco, which both had access to as pipe
carriers.” Br. 32; see also Br. 12-13. Of the six specific incidents defendants cited
in support, only two involve ceremonial tobacco, and two involve contraband
cigarette rolling papers, which are not used in Indian worship and could not have
been obtained through ceremonies. Tr. 137-138, 186, 188, Doc. 170 at 137-138, 186, 188.5 For another Native-American inmate, Marcel Boyd, defendants point to
a 2012 incident where he hid tobacco in balloons. Exh. 139; Tr. 236, Doc. 170-1 at
31; Br. 42-43. This incident happened after the tobacco ban and, accordingly, the
tobacco could not have been diverted from mixtures allowed in ceremonies. The
violation cannot serve as evidence that inmates smuggled tobacco when it was
5 Defendants also claim that a list of Native-American practitioners barred from using ceremonial tobacco because of a tobacco violation supports their decision. Br. 35 (citing Exh. 146). The list covers a 13-month period for the entire prison system. It identifies 33 inmates who had a tobacco violation. But it does not show the source of any contraband tobacco, nor how serious the violations were, nor whether any involved ceremonial tobacco. Exh. 104; Exh. 146; Tr. 191, Doc. 170 at 191; Tr. 276, Doc. 170-1 at 71; Add. 46 n.30; see also Br. 47 (noting there are 941 Native-American inmates in defendants’ custody). Inmates could be placed on the list for any tobacco violation, even one involving chewing tobacco or cigarettes, which are never used in ceremonies. Tr. 276, Doc. 170-1 at 71; Exh. 134.

-23permitted in ceremonies, nor does it show that banning ritual tobacco use will succeed in solving ongoing contraband problems.
A few instances of ceremonial tobacco being abused or stolen over roughly a decade hardly shows that a total tobacco ban is necessary for controlling the use of ceremonial tobacco as contraband. Cf. Warsoldier, 418 F.3d at 1000 (holding that a somewhat higher incidence of assault in men’s prisons as compared to women’s did not justify different hair length restrictions in the two prisons).
Prison officials state that tobacco can be fought over or traded (Br. 32-33) but such problems will no doubt continue with contraband tobacco from other sources regardless of whether the ban on use of ceremonial tobacco continues. A total ban on ritual tobacco, even the 1% mixture at issue here, is hardly the least restrictive means of controlling contraband tobacco. It is, instead, an “exaggerated * * * response” to general problems with tobacco as contraband. See Fegans v. Norris, 537 F.3d 897, 903 (8th Cir. 2008).
Furthermore, it is not enough that prison officials assert that the prison is somewhat safer with a total tobacco ban than it might be without one. As the Supreme Court has noted in the First Amendment context, “the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve [the government’s] legitimate interest. Any restriction * * * could be justified under that analysis.” Ashcroft,

-24542 U.S. at 666. The prison must show that the tobacco ban is necessary to control contraband. Here, prison officials did not satisfy their burden of showing why other, less restrictive means would be ineffective at controlling the few instances of misuse of ceremonial tobacco that have occurred.
In particular, defendants have not shown why the prison cannot accommodate ritual tobacco use as other prisons do. Practices in other prisons are powerful “evidence as to the feasibility of implementing a less restrictive means of achieving prison safety and security,” Hamilton, 74 F.3d at 1557 n.15, necessarily increasing prison officials’ burden to submit countervailing evidence. A prison’s claim that a specific restriction on religious exercise is the least restrictive means of advancing compelling governmental interests is significantly undermined by evidence that many other prisons, with the same compelling interests, allow the practice at issue. See Fowler, 534 F.3d at 941 (reasoning that other prisons’ actions are relevant, although not controlling as to what prison officials can do in their own institutions). As the Ninth Circuit explained, “[s]urely * * * other state and federal prison systems have the same compelling interest in maintaining prison security, ensuring public safety, and protecting inmate health.” Warsoldier, 418 F.3d at 1000. The Supreme Court has acknowledged, in the First Amendment context, that “policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction.” Procunier v.

-25Martinez, 416 U.S. 396, 414 n.14 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413 (1989).
The practices in the federal prison system are particularly relevant. The BOP “has managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights of other prisoners,” Cutter, 544 U.S. at 725 (quoting U.S. Br. at 24, No. 03-9877). Congress passed RLUIPA after considering the BOP’s experience under RFRA. See 146 Cong. Rec. 16,700 (2000) (letter from Dep’t of Justice to Sen. Hatch, explaining that “we do not believe [RLUIPA] would have an unreasonable impact on prison operations” because compliance with RFRA “has not been an unreasonable burden to the Federal prison system”).
In Warsoldier, for example, the court held the state prison’s hair length regulations were likely not the least restrictive means of protecting security because “other prison systems, including the Federal Bureau of Prisons, do not have such hair length policies or, if they do, provide religious exemptions.” 418 F.3d at 999. The First Circuit has explained that federal prison policies accommodating religious needs suggest that a state prison could implement similar policies. Spratt v. Rhode Island Dep’t of Corr., 482 F.3d 33, 42 (2007); see also Koger v. Bryan, 523 F.3d 789, 800 (7th Cir. 2008) (noting that the federal prisons

-26use less restrictive means for granting a prisoner a religious diet); cf. Turner v. Safley, 482 U.S. 78, 93 (1987) (upholding restriction on prisoner correspondence in the face of a First Amendment challenge in part because “[o]ther well-run prison systems, including the Federal Bureau of Prisons, have concluded that substantially similar restrictions on inmate correspondence were necessary to protect institutional order and security”).
In this case, the district court found Native-American practitioners nationwide benefit from “widespread allowance of tobacco in prisons,” and stated that Federal prisons, in particular, permit “ritual use of tobacco.” Add. 57; Doc. 173-1 at 21. As the district court explained, “[i]n the RLUIPA context, the BOP’s ability to accommodate religious exercise with less restrictive alternatives provides evidence of the feasibility of such measures in state prison systems.” Add. 54-55. The court also cited several examples of state prisons that allow ritual tobacco use, and noted defendants had identified only two examples of prisons that imposed a total ban. Add. 30, 55; Exh. 3.
Of course, a prison may always show that its circumstances differ from prisons where the religious accommodation is allowed. Federal policies are relevant “in the absence of any explanation by [the prison] of significant differences * * * that would render the federal policy unworkable.” Spratt, 482 F.3d at 42; see also Fegans, 537 F.3d at 905 (approving stricter grooming

-27standards in state’s male prisons than in its female prison based on specific differences in prison conditions).
The prison, however, bears the burden of showing those differences. Spratt, 482 F.3d at 42. Officials here, for example, could have explained how their circumstances differ in ways that would “render * * * unworkable” another prison’s policy. Ibid. Defendants could have presented witnesses to testify about other prisons’ conditions, allowing defendants to differentiate South Dakota’s prisons. Instead, defendants simply speculated that no policy that allows ceremonial tobacco would work. In their brief, defendants offer no meaningful comparisons but simply state, without elaboration, that the South Dakota prisons have a greater percentage of Native-American prisoners than do prisons in other states. Br. 9; see also Doc. 176 at 16. That by itself hardly differentiates the prisons in any meaningful way. Defendants bore the burden to show why the prison could not follow the widespread practice. It was not up to plaintiffs to prove that prisons accommodating ritual tobacco use were similar to South Dakota’s prisons, and the court need not simply accept the prison officials’ assertions here, without explanation, that policies in use elsewhere could not be implemented. Conclusory statements are insufficient to meet the state’s burden of proof. See Warsoldier, 418 F.3d at 998-999; Murphy, 372 F.3d at 988-989.

-28-
Contrary to defendants’ assertions (Br. 36-37), this case differs from this Court’s decision in Fowler. In that case – as here – the prison pointed to legitimate safety concerns. But in Fowler the prison met its burden to show its policies were the least restrictive means of promoting security. Fowler had identified only one prison which had safely accommodated the sweat lodge ceremony he had requested – and that ceremony had been discontinued after security conditions changed. Fowler, 534 F.3d at 936, 942-943. Officials explained how their prison differed from the one which had allowed a sweat lodge, rebutting the prisoner’s RLUIPA claim by showing “different institutional circumstances” and “material difference[s]” between the two prisons. Id. at 939, 942 & n.12.6 The prisoner in Fowler did not present any other significant evidence to show that there was a less restrictive means to ensure security while meeting his religious needs. Id. at 940942.7
Similarly, this Court’s decision in Hamilton does not require reversal here. In that case, this Court noted that testimony about other prisons showed there were significant security problems with the sweat lodge ceremony the prisoner requested. 74 F.3d at 1557 n.15. And in concluding that there were no less
6 Indeed, this Court pointed to evidence that sweat lodge ceremonies had caused significant problems at other prisons. Fowler, 534 F.3d at 939.
7 Incidentally, the prison in Fowler did permit ritual smoking. 534 F.3d at 940.

-29restrictive alternatives to the grooming regulations plaintiff challenged, this Court cited examples of several other prisons with similar rules. Id. at 1555 n.12. This Court concluded that “Hamilton has failed to enlighten us as to any viable less restrictive means” for accommodating his religious needs. Id. at 1556.
Furthermore, this case is not like Fegans, as the prison system in that case carefully considered extensive evidence of “other policies” in various prison systems before imposing the challenged restrictions on hair length. Fegans, 537 F.3d at 904-905; see Br. 38-39. Prison officials in that case prepared “a memorandum detailing the hair and grooming policies of five other States and the Federal Bureau of Prisons,” used it “in formulating [its] policy,” and “considered other alternatives during their deliberations.” Fegans, 537 F.3d at 905 n.3. Officials presented specific evidence to rebut the prisoner’s claims that they could adopt policies like those in other prisons, explaining in particular how their men’s prisons differed from their women’s prison, where long hair was allowed. Id. at 904-905 & n.2. The women prisoners were housed in one unit, so there were no transfers and less opportunity for escapes or smuggling. Id. at 904. Also, the district court credited officials’ unrebutted testimony that the women prisoners were not as prone to escape or smuggle in contraband. Id. at 905.
Here, in contrast, prison officials implemented the tobacco ban after considering practices at only two prisons, and it appears they actually consulted

-30prison officials at only one. They did not give the court any reason why they could not employ less restrictive policies as do other prisons, much less point out “material difference[s]” between their prison and the many, including the federal, prisons that allow some ritual tobacco. Fowler, 534 F.3d at 942 n.12. While a prison need not “refute every conceivable option in order to satisfy the least restrictive means prong,” Hamilton, 74 F.3d at 1556, prison officials bear the burden of refuting the evidence presented. See ibid. The prison did not rebut that evidence here, and accordingly, the district court properly concluded that defendants had not shown why they could not adopt policies similar to those at other prisons. See Warsoldier, 418 F.3d at 1000 (holding prison has not shown its regulations are the least restrictive means of assuring security where it “offers no explanation” for why it cannot adopt policies like those in other prisons).

-31-
CONCLUSION
This court should affirm the district court’s decision.
Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General
s/April J. Anderson MARK L. GROSS APRIL J. ANDERSON Attorneys Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 616-9405

CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type volume limitation imposed by Fed. R. App. P. 32(a)(7)(B) and 29(d). The brief was prepared using Microsoft Word 2007 and contains no more than 6,800 words of proportionally spaced text. The type face is Times New Roman, 14-point font. I also certify that an electronic version of this brief has been scanned with the most recent version of Trend Micro Office Scan Corporate Edition (version 8.0) and is virus-free.
s/April J. Anderson APRIL J. ANDERSON Attorney
Date: June 26, 2013

CERTIFICATE OF SERVICE I hereby certify that on June 26, 2013, I submitted the foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES AND URGING AFFIRMANCE with the Case Manger, Yvette Lisenby, Yvette_Lisenby@ca8.uscourts.gov, via electronic mail for filing with the United States Court of Appeals for the Eighth Circuit and service on counsel of record.
s/April J. Anderson APRIL J. ANDERSON Attorney

 
 .

Case 4:09-cv-04182-KES Document 5 Filed 12/16/09 Page 1 of 6 PageID #: 17

Case 4:09-cv-04182-KES Document 1 Filed 12/09/2009 Page 1 of 6

PI 'ED

UNITED STATES DISTRICT COURT

DEc 16 2009

DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

~~

=======---~============~======================

NATIVE AMERICAN COUNCIL OF

)

CIV. NO. 09- 'ff f_:L

TRIBES; Blaine Brings Plenty, )

Shawn Garrnett, Nephi Antelope)

Brian Dubray, Bryan White Pipe) Clayton Creek, David Deloria, ) and all other persons who are )

PLAINTIFF'S COMPLAINT UNDER 42 U.S.C. §2000cc-

similarly situated,

)

1 (a) ( 1) - ( 2) FOR

PLAINTIFFS,

)

VIOLATION OF THE RIGHT

)

TO FREE EXERCISE OF

)

RELIGION

)

vs

)

)

DOUGLAS WEBER, Warden of

)

South Dakota State Prison,

)

TIMOTHY REISCH, Secretary of )

the Department of Corrections,)

MARTY JACKLEY, Attorney

)

General, et al,

)

)

DEFENDANTS.

)

Plaintiffs, the Native American Council of Tribes, ( 11 NACT or organization 11 ), institute this civil rights suit pursuant to the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §2000cc-1(a) (1)-(2), seeking an injunction and judicial review of an adverse administrative decision, wherein Plaintiffs were not given a full, fair and adequate hearing, Fed.R.Civ.P.65(a) (2). The Plaintiffs never agreed for such decision to be made. Fed.R.Civ.P.56(c). With this, the Plaintiffs seek an immediate injunction asserting the following claims for relief: (1) violation of right to free exercise of religion; (2) violation of the American Indian Religious Freedom Act, 42 U.S.C. § 1999; (3) violation of equal protection; (4) violation of Federal trust responsibility; (5) violation of the right of freedom of religion under customary international law and the United Nations Charter; (6) violation of plaintiffs right to protection against

Case 4:09-cv-04182-KES Document 5 Filed 12/16/09 Page 2 of 6 PageID #: 18
, Case 4:09-cv-04182-KES Document 1 Filed 12/09/2009 Page 2 of 6
genocide as provided in international law and in the Geneva convention; (7) violation of plaintiffs rights as a "self governing people" under Article 73 of the United Nations Charter. Manybeads v. United states, No 88 Civ. 0181, Slip.Op. at 51-54 (1988).
In addition to this complaint, the named defendants are prohibited and may not rely on mere denials or allegations of other similar situated complaints related to the present in its answer or pleadings. Id at 612-613 (quoting Fed.R.Civ.P.56(c)).
FACTUAL BACKGROUND Plaintiff (N.A.C.T.) is a federally recognized Indian organization with its headquarters at the South Dakota State Penitentiary (S.D.S.P.) in Sioux Falls, south Dakota. By virtue of its federally registered status, the Native American Council of Tribes organization is entitled to affiliate with the nine (9) Sioux Indian Tribes in south Dakota and North Dakota, Montana, Nebraska and Minnesota, to plan, conduct, and administer spiritual programs or portions thereof under §501(c) (3) of the Indian Reorganization Act of 1934. See Washington v. washington State Commercial Passenger Fishing Vessel Ass'n. 443 u.s. 658 (1979). N.A.C.T. instituted this suit pursuant to the R.L.U.I.P.A., seeking to reverse the predilection penal administration decision and to restore all spiritual ceremonial programs that are embodied in "tobacco", and offered within a ceremonial framework.
DISCUSSION Discrimination prohibited: No Native American prisoner shall be penali zed or discriminated against solely on the basis of Native American religious beliefs or practices, (BOP) states that "no one may disparage the religious beliefs of an inmate." (Sec. 13) Federal regulations on the protection of incarcerated Native Americans' religious rights can serve, as the United Nat ions (U.N.) Report (PS 5360.07.Aug.2 5 , 1997).

Case 4:09-cv-04182-KES Document 5 Filed 12/16/09 Page 3 of 6 PageID #: 19
, Case 4:09-cv-04182-KES Document 1 Filed 12/09/2009 Page 3 of 6
STANDARD OF REVIEW Unlike the usual civil case in which the Plaintiffs bear the burden of proof by a preponderance of the evidence, the South Dakota State Penitentiary Administration places the burden on itself in not providing any full, fair or adequate hearing, or an opportunity to plaintiffs to establish, by clearly demonstrating the validity of the grounds for constitutional rights (or portion thereof). (O'Lone v. Sbabazz, 482 U.S. 342, at 348 (1987)) (quoting 28 u.s.c. §2403(a)). Freedom of religion is one of the Federal Constitutional rights of prisoners ... discrirnination is prohibited: No Native American prisoner shall be penalized or discriminated against solely on the basis of Native American religious beliefs or practices. The Fourteenth Amendment to the United States Constitution is the most important guarantee against infringement of civil liberties by the States. Its due process and equal protection clauses protect all "persons" and it is the South Dakota state Penitentiary Administration's violation of such constitutional rights that we address herein, although Indians clearly qualify on both counts, to rights and immunities clause protections. The penalogical administration has been reluctant to accord Indian Inmates those rights enjoyed under State law by non-Indians. These attitudes still linger. The United States supreme Court has made it clear that state discrimination against Indians because of their status is without support of law. White
Mountain Apache Tribe v. Bracker, 448 U.S. 142 u.s. (1980}.
This general principle suggests that judicial review of the Penalogical Administration decisions should be taken as discriminatory because the South Dakota State Penitentiary administration has not given Plaintiffs any hearings in the matter but arbitrarily took from them the most effective part of their ceremonies which is "tobacco" for prayer, and for prayer to be effective, it must be embodied in "tobacco" and offered within a ceremonial framework. See generally,

Case 4:09-cv-04182-KES Document 5 Filed 12/16/09 Page 4 of 6 PageID #: 20
Case 4:09-cv-04182-KES Document 1 Filed 12/09/2009 Page 4 of 6
Youngbear v. Thalacker, 17 F.Supp.2d 902 (N.D.Iowa 2001) (quoting Swift v. Lewis, 901 F.2d 730 (9th cir. 1990).
The plain language of §2000cc-2(a) mandates the Plaintiffs defense .... against a party who violates congressional enactments that protect incarcerated Native Americans• religious rights pursuant to 28 u.s.c. §2403(a), makes a showing sufficient to establish the existence of an element essential to Plaintiffs' case, 349 F.3d 257, 261 (CA6 2003). 11 In this situation, there is no genuine issue as to any material fact," because the Defendants• complete failure of proof concerning an essential elaborated element.
Turner v. Safley, 482 u.s . 78, at 100 (1987)).
MOREOVER, because there was no hearing held or offered between the parties is a violation of the due process clause in the most basic sort, and Defendants' request for Summary Judgment will not defeat an otherwise properly supported action for penalogical disregard for inmates' Constitutional rights. Turner, supra. Plaintiffs are entitled to judgment as a matter of law. Id. at 261 (quoting Fed.R.Civ.P.56(c)).
PROCEDURAL PROPRIETY OF THE DECLINATION The Prison Administration statutes, policies and regulations are unconstitutional in this case because any agency action taken without statutory authorization, or which frustrates the congressional policy which underlies a
statute, is invalid. Lemon v. Kurtzman, 403 u.s. 602
(1971).
As to N.A.C.T. action, 403 u.s., at 612-613 for
Constitutional rights violations. A preliminary injunction should be granted.
Respectfully submitted,
B~ 0Q ~!J?~
Native Amer1c anco'tffiCI1 of TribeS-
Blaine Brings Plenty, Chairman
Dated this _ ·1'_s/--day of .ne.c..e;..,rI.Jar/Zf,b_2009

• Case 4:09-cv-04182-KES Document 5 Filed 12/16/09 Page 5 of 6 PageID #: 21
. " Case 4:09-cv-04182-KES Document 1 Filed 12/09/2009 Page 5 of 6
SOUTH DAKOTA DEPARTMENT OF CORRECTIONS
STATE PENITENTIARY
P.O. Box 5911 Sioux Falls, SO 57117-5911
Phone (605) 367-5051 Fax: (605) 367-5038
10/19/09
Dear Tribal Liaisons, Spiritual Leaders, Pipe Carriers, and Sundancers,
In 2000, the South Dakota Department of Corrections became tobacco free with the only exception that tobacco may be used for Native American Ceremonies. Over the years, tobacco tie mixtures and pipe mixtures have increasingly been abused and this problem is directly impacting the Native American Ceremonies. Many inmates have been caught separating the tobacco from their tie and pipe mixtures. This tobacco is then sold or bartered to other inmates. Sometimes the prison gangs are pressuring the inmates to sell their tobacco instead of using it for spiritual reasons.
Many times the SDDOC has r-eached out to the elders of the NACT/LDN/LCT groups to help prevent the abuse of tobacco . The quantities of tobacco have been adjusted to prevent the separation. Inmates caught abusing tobacco are suspended for six months from purchasing tobacco tie and pipe rr:'ixtures. However, unfortunately the tobacco continues to be abused.
Medicine Men and Spiritual Leaders, who lead ceremonies at our facilities, have brought to our attention that tobacco is not traditional to the Lakota/Dakota ceremonies and that it is too addictive to be used for ceremonies. They have requested that tobacco be removed from Native American Ceremonies so that the participants of these ceremonies will focus on their spiritual paths and not abtlsing the tobacco.
Effective 10/19/09, the SDDOC will follow the advice of the respected Medicine Men and Spiritual Leaders and remove tobacco from Native American Ceremonies. All Native American ceremonies will continue with the use of other botanicals (cansasa, sage, bitter root, bearberry, lovage, flat cedar, sweet grass, etc).
Understanding the importance of all spiritual and religious ceremonies at our facilities , our goal is to work together to ensure that no religious or spiritual path is abused.
Sincerely,
~~-~
Douglas Lq Weber Director of Prison Operations

Case 4:09-cv-04182-KES Document 5 Filed 12/16/09 Page 6 of 6 PageID #: 22
. . " Case 4:09-cv-04182-KES Document 1 Filed 12/09/2009 Page 6 of 6
j

 
 Case 4:09-cv-04182-KES Document 71 Filed 06/15/10 Page 1 of 10 PageID #: 337

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

NATIVE AMERICAN COUNCIL OF TRIBES; )

BLAINE BRINGS PLENTY;

)

SHAWN GARRNETT;

)

NEPHIANTELOPE;

)

BRIANDUBRAY;

)

CLAYTON CREEK;

)

DAVID DELORIA; and

)

All other persons who are similarly situated,

)

)

)

Plaintiffs,

)

)

vs.

)

)

)

DOUGLAS WEBER, in his official capacity as )

Warden ofthe South Dakota State Penitentiary; )

TIMOTHY REISCH, in his official capacity as )

Secretary ofthe South Dakota Department of

)

Corrections; and

)

MARTY J. JACKLEY, in his official capacity as )

Attorney General for the State of South Dakota, )

)

Defendants.

)

Civ. 09-4182-KES
PLAINTIFFS' UNOPPOSED SECOND AMENDED COMPLAINT

COMES NOW the Plaintiffs and, by way of their Unopposed Second Amended Complaint against the Defendants, say:
1. Plaintiffs bring this civil rights action under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., seeking declaratory and injunctive relief (1) declaring the actions, decisions, policies, and/or regulations of Defendants, insofar as they prohibit the plaintiffNative American inmates and other similarly situated Native American inmates of the South Dakota State Penitentiary from using tobacco

Case 4:09-cv-04182-KES Document 71 Filed 06/15/10 Page 2 of 10 PageID #: 338
products in Native American religious rituals and ceremonies, violate (a) RLUIPA; (b) the plaintiffs' First Amendment right to the free exercise of religion and their due process and equal protection rights under the Fourteenth Amendment; (c) the American Indian Religious Freedom Act, 42 U.S.C. § 1996; (d) the right of freedom of religion under customary international law and the United Nations Charter; (e) the right to protection against genocide as provided under international law and the Geneva Convention; and (f) plaintiffs' rights as a "self-governing people" under Article 73 of the United Nations Charter, and (2) temporarily and permanently enjoining Defendants from continuing to undertake, implement and enforce such illegal and unconstitutional actions, decisions, policies, and/or regulations.
PARTIES 2. PlaintiffNative American Council of Tribes (NACT) is a South Dakota non-for-profit
501(c)(3) corporation that was formed within the South Dakota State Penitentiary, with offices at 2601 S. Minnesota Ave., Ste. 105, Sioux Falls, SD 57105. NACT is governed by a general council, whose membership is composed of the named individual Plaintiffs in this case, all of who are members of the Great Sioux Nation. 3. Plaintiff Blaine Brings Plenty is currently an inmate at the South Dakota State Penitentiary. 4. PlaintiffShaun Garnette is a resident of Rapid City, South Dakota, who formerly was an inmate at the South Dakota State Penitentiary. 5. PlaintiffNephi Antelope is currently an inmate at the South Dakota State Penitentiary. 6. Plaintiff Brian Dubray is currently an inmate at the South Dakota State Penitentiary. 7. Plaintiff Clayton Creek is currently an inmate at the South Dakota State Penitentiary.
2

Case 4:09-cv-04182-KES Document 71 Filed 06/15/10 Page 3 of 10 PageID #: 339
8. Plaintiff David Deloria is currently an inmate at the South Dakota State Penitentiary. 9. Defendant Douglas Weber is the Warden of the South Dakota State Penitentiary. 10. Defendant Timothy Reisch is the Secretary of the South Dakota Department of
Corrections. 11. Defendant Marty J. Jackley is the Attorney General for the State of South Dakota.
JURISDICTION AND VENUE 12. The Court has jurisdiction of this matter under 28 U.S.C. § 1331. 13 . Venue is properly laid in the District of South Dakota under 28 U.S.C. § 1391(b).
FACTUAL BACKGROUND
14. Defendants, through their actions, policies and/or regulations, have prohibited the use of tobacco in Native American religious ceremonies conducted at the South Dakota State Penitentiary.
15. NACT and its individual members have instituted this action, pursuant to RLUIPA, to invalidate and reverse these actions, policies and/or regulations, and to enjoin Defendants to cease to prohibit, and to compel Defendants to allow, the use of tobacco in Native American religious rituals and ceremonies conducted at the South Dakota State Penitentiary. COUNT I- RLUIPA
16. Plaintiffs hereby reallege the allegations ofParagraphs 1 through 15 of their Second Amended Complaint as if fully set forth herein at length.
17. RLUIPA for forbids any government, including the State of South Dakota, from "impos[ing] a substantial burden on the religious exercise of a person residing in or confmed to an institution ... even if the burden results from a rule of general
3

Case 4:09-cv-04182-KES Document 71 Filed 06/15/10 Page 4 of 10 PageID #: 340
applicability, unless the government demonstrates that imposition ofthe burden on that person - (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc-1 (a). 18. The individual Plaintiffs and similarly situated Native American inmates are "persons residing in or confined to an institution," namely the South Dakota State Penitentiary, who have engaged in and who desire to continue to engage in religious exercises protected by RLUIPA, specifically Native American religious ceremonies that require or involve the use oftobacco. 19. Defendants, by their actions, decisions policies and/or regulations, have imposed a substantial burden on the religious exercises of Plaintiffs and similarly situated inmates of the South Dakota State Penitentiary by prohibiting all use oftobacco by inmates, including such use in Native American religious ceremonies. 20. The imposition of this substantial burden on the religious exercises ofPlaintiffs and similarly situated Native American inmates of the South Dakota State Penitentiary does not further any compelling governmental interest nor is it the least restrictive means of furthering a compelling governmental interest, if any. WHEREFORE Plaintiffs respectfully demand the entry ofjudgment against Defendants: (a) Declaring that the actions, decisions, policies, and/or regulations of Defendants,
insofar as they prohibit the Plaintiffs and other similarly situated Native American inmates of the South Dakota State Penitentiary from using tobacco products in Native American religious rituals and ceremonies, violate RLUIPA;
4

Case 4:09-cv-04182-KES Document 71 Filed 06/15/10 Page 5 of 10 PageID #: 341
(b) Temporarily and permanently enjoining Defendants from continuing to undertake, implement and enforce such illegal actions, decisions, policies, and/or regulations;
(c) For costs and attorney's fees; and (d) For such other relief as the Court may deemjust or equitable.
COUNT II- FIRST AMENDMENT 21. Plaintiffs hereby reallege the allegations of Paragraphs 1 through 20 of their Second
Amended Complaint as if fully set forth herein at length. 22. Defendants, by their actions, decisions, policies and/or regulations, have imposed a
substantial burden on the sincerely held religious beliefs of Plaintiffs and other similarly situated Native American inmates by prohibiting all use of tobacco by inmates, including such use in Native American religious ceremonies, in violation of the Free Exercise Clause ofthe First Amendment. 23. No rational connection exists between the actions, decisions, policies and/or regulations ofDefendants prohibiting all use of tobacco by inmates, including such use in Native American religious ceremonies and any legitimate governmental interest. 24. No alternative means of exercising the rights of Plaintiffs and other Native American inmates to use tobacco in Native American religious ceremonies currently exists. 25. Reasonably accommodating the exercise of the rights of Plaintiffs and other Native American inmates to use tobacco in Native American religious ceremonies would have no adverse impact on guards, other prisoners, or on prison resources generally. 26. Ready, easy-to-implement alternatives to a total ban on the use oftobacco exist that would accommodate the rights of Plaintiffs and other Native American inmates to use tobacco in Native American religious ceremonies.
5

Case 4:09-cv-04182-KES Document 71 Filed 06/15/10 Page 6 of 10 PageID #: 342
WHEREFORE Plaintiffs respectfully demand the entry ofjudgment against Defendants: (a) Declaring that the actions, decisions, policies, and/or regulations of Defendants, insofar as they prohibit the Plaintiffs and other similarly situated Native American inmates of the South Dakota State Penitentiary from using tobacco products in Native American religious rituals and ceremonies, violate the Free Exercise Clause of the First Amendment; (b) Temporarily and permanently enjoining Defendants from continuing to undertake, implement and enforce such unconstitutional actions, decisions, policies, and/or regulations; (c) For costs and attorney's fees; and (d) For such other relief as the Court may deem just or equitable. COUNT III- FOURTEENTH AMENDMENT
27. Plaintiffs hereby reallege the allegations of Paragraphs 1 through 26 of their Second Amended Complaint as if fully set forth herein at length.
28. Defendants, by their actions, decisions, policies and/or regulations, have deprived Plaintiffs and other similarly situated Native American inmates of their legally protected liberty and property interests without procedural and substantive due process and have unconstitutionally discriminated against Plaintiffs and other similarly situated Native American inmates in violation of their rights to equal protection of the laws by prohibiting them from using tobacco in Native American religious ceremonies.
WHEREFORE Plaintiffs respectfully demand the entry ofjudgment against Defendants: (a) Declaring that the actions, decisions, policies, and/or regulations of Defendants, insofar as they prohibit the Plaintiffs and other similarly situated Native American
6

Case 4:09-cv-04182-KES Document 71 Filed 06/15/10 Page 7 of 10 PageID #: 343
inmates of the South Dakota State Penitentiary from using tobacco products in Native American religious rituals and ceremonies, violate the Due Process and Equal Protection Clauses ofthe Fourteenth Amendment; (b) Temporarily and permanently enjoining Defendants from continuing to undertake, implement and enforce such unconstitutional actions, decisions, policies, and/or regulations; (c) For costs and attorney's fees; and (d) For such other relief as the Court may deemjust or equitable. COUNT IV- AMERICAN INDIAN RELIGIOUS FREEDOM ACT 29. Plaintiffs hereby reallege the allegations of Paragraphs 1 through 28 of their Second Amended Complaint as if fully set forth herein at length. 30. Defendants, by their actions, decisions, policies and/or regulations prohibiting the Plaintiffs and other similarly situated Native American inmates ofthe South Dakota State Penitentiary from using tobacco products in Native American religious rituals and ceremonies, have violated the American Indian Religious Freedom Act, 42 U.S.C. § 1996. WHEREFORE Plaintiffs respectfully demand the entry ofjudgment against Defendants: (a) Declaring that the actions, decisions, policies, and/or regulations of Defendants, insofar as they prohibit the Plaintiffs and other similarly situated Native American inmates ofthe South Dakota State Penitentiary from using tobacco products in Native American religious rituals and ceremonies, violate the American Religious Freedom Act, 42 U.S.C. § 1996;
7

Case 4:09-cv-04182-KES Document 71 Filed 06/15/10 Page 8 of 10 PageID #: 344
(b) Temporarily and permanently enjoining Defendants from continuing to undertake, implement and enforce such illegal actions, decisions, policies, and/or regulations;
(c) For costs and attorney's fees; and (d) For such other relief as the Court may deem just or equitable.
COUNT V- INTERNATIONAL LAW 31. Plaintiffs hereby reallege the allegations of Paragraphs 1 through 30 of their Second
Amended Complaint as if fully set forth herein at length. 32. Defendants, by their actions, decisions, policies and/or regulations prohibiting the
Plaintiffs and other similarly situated Native American inmates ofthe South Dakota State Penitentiary from using tobacco products in Native American religious rituals and ceremonies, have violated their right of freedom of religion under customary international law and the United Nations Charter, their right to protection against genocide as provided under international law and the Geneva Convention, and their rights as a "self-governing people" under Article 73 of the United Nations Charter. WHEREFORE Plaintiffs respectfully demand the entry ofjudgment against Defendants: (a) Declaring that the actions, decisions, policies, and/or regulations of Defendants,
insofar as they prohibit the Plaintiffs and other similarly situated Native American inmates of the South Dakota State Penitentiary from using tobacco products in Native American religious rituals and ceremonies, violate customary international law, the Geneva Convention, and the United Nations Charter; (b) Temporarily and permanently enjoining Defendants from continuing to undertake, implement and enforce such illegal actions, decisions, policies, and/or regulations; (c) For costs and attorney's fees; and
8

Case 4:09-cv-04182-KES Document 71 Filed 06/15/10 Page 9 of 10 PageID #: 345 (d) For such other relief as the Court may deem just or equitable. Dated this 15th day of June, 2010 Respectfully submitted, GONZALEZ LAW FIRM Is! Ma¥io-G~ Mario Gonzalez Attorney for Plaintiffs Gonzalez Law Firm 522 Seventh Street, Suite 202 Rapid City, SD 57701 Tel (605)716-6355 Fax (605)716-6357 E-mail: mario@mariogonzalezlaw.com
9

Case 4:09-cv-04182-KES Document 71 Filed 06/15/10 Page 10 of 10 PageID #: 346

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

NATIVE AMERICAN COUNCIL OF TRIBES; )

BLAINE BRINGS PLENTY;

)

Civ. 09-4182-KES

SHAWN GARRNETT;

)

NEPHI ANTELOPE;

)

BRIAN DUBRAY;

)

CLAYTON CREEK;

)

DAVID DELORIA; and

)

All other persons who are similarly situated,

)

)

Plaintiffs,

)

vs.

)

)

DOUGLAS WEBER, in his official capacity as )

Warden ofthe South Dakota State Penitentiary; )

TIMOTHY REISCH, in his official capacity as )

Secretary ofthe South Dakota Department of

)

Corrections; and

)

MARTY J. JACKLEY, in his official capacity as )

Attorney General for the State of South Dakota, )

)

Defendants.

)

CERTIFICATE OF SERVICE

I hereby certify that a on this 15th day of June, 2010, I serve a true and correct copy of the UNOPPOSED SECOND AMENDED COMPLAINT via United States District Court ECF filing system to the following:

Scott Hendricks Leuning Attorney for Defendants 300 South Phillips Ave., Suite 300 PO Box 5027 Sioux Falls, SD 57117-5027

Respectfully submitted, GONZALEZ LAW FIRM

lsi lvtCU'"Lo-G~ Mario Gonzalez Attorney for Plaintiffs

10

 
 Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 1 of 20
U.S. District Court District of South Dakota (Southern Division) CIVIL DOCKET FOR CASE #: 4:09−cv−04182−KES

CLOSED

Native American Council of Tribes et al v. Weber et al Assigned to: U.S. District Judge Karen E. Schreier Case in other court: 8th Circuit, 13−01401
Eighth Circuit, 13−02745 Cause: 42:2000 Job Discrimination (Race)
Plaintiff

Date Filed: 12/09/2009 Date Terminated: 01/28/2013 Jury Demand: None Nature of Suit: 890 Other Statutes: Other Statutory Actions Jurisdiction: Federal Question

Native American Council of Tribes

represented by Pamela R. Reiter Johnson, Janklow, Abdallah, Reiter & Parsons LLP 101 South Main Avenue, Suite 100 PO Box 2348 Sioux Falls, SD 57104−5933 (605) 338−4304 Fax: (605) 338−4162 Email: pamela@janklowabdallah.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald A. Parsons , Jr. Johnson, Janklow, Abdallah, Reiter & Parsons LLP 101 South Main Avenue, Suite 100 PO Box 2348 Sioux Falls, SD 57104−5933 (605) 338−4304 Fax: (605) 338−4162 Email: ron@janklowabdallah.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mario Gonzalez 522 Seventh St Suite 202 Rapid City, SD 57701 (605) 716−6355 Fax: (605) 716−6357 Email: mario@mariogonzalezlaw.com TERMINATED: 08/15/2011

Sara E. Show Johnson, Janklow, Abdallah, Reiter & Parsons LLP 101 South Main Avenue, Suite 100 PO Box 2348 Sioux Falls, SD 57104−5933 (605) 338−4304 Fax: (605) 338−4162 Email: sara@janklowabdallah.com TERMINATED: 06/09/2014

Plaintiff Blaine Brings Plenty

represented by Pamela R. Reiter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 2 of 20

Ronald A. Parsons , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mario Gonzalez (See above for address) TERMINATED: 08/15/2011

Sara E. Show (See above for address)

Plaintiff
Shawn Garrnett TERMINATED: 09/09/2011

represented by Mario Gonzalez (See above for address) TERMINATED: 08/15/2011

Plaintiff
Nephi Antelope TERMINATED: 09/09/2011

represented by Mario Gonzalez (See above for address) TERMINATED: 08/15/2011

Plaintiff
Brian Dubray TERMINATED: 01/06/2012

represented by Pamela R. Reiter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald A. Parsons , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mario Gonzalez (See above for address) TERMINATED: 08/15/2011

Sara E. Show (See above for address)

Plaintiff
Bryan White Pipe TERMINATED: 03/17/2010

represented by Mario Gonzalez (See above for address) TERMINATED: 08/15/2011

Plaintiff Clayton Sheldon Creek

represented by Pamela R. Reiter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald A. Parsons , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mario Gonzalez (See above for address) TERMINATED: 08/15/2011

Sara E. Show (See above for address)

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 3 of 20

Plaintiff
David Deloria TERMINATED: 09/09/2011

represented by Mario Gonzalez (See above for address) TERMINATED: 08/15/2011

V. Defendant Douglas Weber in his official capacity as Warden of the South Dakota State Penitentiary
Defendant Timothy Reisch in his official capacity as Secretary of the Department of Corrections TERMINATED: 03/12/2012
Defendant Marty Jackley in his official capacity as Attorney General for the State of South Dakota TERMINATED: 03/29/2012
Defendant Julie Kalla TERMINATED: 06/15/2010

represented by James E. Moore Woods, Fuller, Shultz & Smith, PC PO Box 5027 Sioux Falls, SD 57117−5027 336−3890 Fax: 339−3357 Email: James.Moore@woodsfuller.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele A. Munson Woods, Fuller, Shultz & Smith, PC PO Box 5027 Sioux Falls, SD 57117−5027 (605) 336−3890 Fax: (605) 339−3357 Email: shelly.munson@woodsfuller.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott H. Leuning Goosmann Law Firm 5010 South Minnesota Avenue Suite 100 Sioux Falls, SD 57108 (605) 371−2000 Fax: (605) 275−2039 Email: leunings@goosmannlaw.com TERMINATED: 06/15/2010
represented by James E. Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott H. Leuning (See above for address) TERMINATED: 06/15/2010
represented by James E. Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott H. Leuning (See above for address) TERMINATED: 06/15/2010
represented by James E. Moore (See above for address)

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 4 of 20

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott H. Leuning (See above for address) TERMINATED: 06/15/2010

Defendant
Dennis Kaemingk in his official capacity as Secretary of the Department of Corrections

represented by James E. Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele A. Munson (See above for address) ATTORNEY TO BE NOTICED

Interested Party
Gerald J. Thin Elk TERMINATED: 02/09/2012

represented by Gerald J. Thin Elk #38052 SOUTH DAKOTA STATE PENITENTIARY PO Box 5911 Sioux Falls, SD 57117−5911 PRO SE

Interested Party
David W. Jensen TERMINATED: 02/09/2012

represented by David W. Jensen #27733 SPR − SIOUX FALLS South Dakota State Penitentiary PO Box 5911 Sioux Falls, SD 57117 PRO SE

Interested Party
Adrian Fool Bull TERMINATED: 01/06/2012

represented by Adrian Fool Bull #20754100 EOCI 2500 Westgate Pendleton, OR 97801 PRO SE

Interested Party
Aaron Andrews TERMINATED: 01/06/2012

represented by Aaron Andrews 36226 SPR − SIOUX FALLS South Dakota State Penitentiary PO Box 5911 Sioux Falls, SD 57117 PRO SE

Interested Party United States of America

represented by Michael Johnson Songer U.S. Department of Justice − Civil Rights Division Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, DC 20530 (202) 305−1762 Fax: (202) 514−0212

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 5 of 20
Email: michael.songer@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 12/09/2009
12/09/2009 12/10/2009 12/10/2009
12/16/2009 12/16/2009 12/16/2009 12/16/2009 12/16/2009 12/16/2009 12/21/2009 12/21/2009 12/21/2009 12/28/2009
01/07/2010 01/11/2010
01/15/2010 01/15/2010
01/25/2010
02/03/2010

# Docket Text
1 COMPLAINT Receipt Number SDX400016649 in the amount of $ 350, filed by Blaine Brings Plenty. (Attachments: # 1 Envelope postmarked 12/8/09)(SLW) (Entered: 12/09/2009)
2 Filing fee: $ 350, receipt number SDX400016649 (SLW) (Entered: 12/09/2009)
3 Letter to Plaintiff Brings Plenty advising of case number and Judge, enclosing summons (SLW) (Entered: 12/10/2009)
4 Letter to Plaintiffs Garrnett, Antelope, Dubray, White Pipe, Creek, and Deloria regarding filing of case, requesting to sign and return complaint if a party to this case, or to advise if not. (SLW) (Entered: 12/10/2009)
5 COMPLAINT, signed by Nephi Antelope.(SLW) (Entered: 12/16/2009)
6 COMPLAINT, signed by Shawn Garrnett.(SLW) (Entered: 12/16/2009)
7 COMPLAINT, signed by Bryan White Pipe.(SLW) (Entered: 12/16/2009)
8 Summons Issued as to Timothy Reisch. Two true copies mailed to Mr. Brings Plenty with copy of Rule 4. (SLW) (Entered: 12/16/2009)
9 Summons Issued as to Marty Jackley. Two true copies mailed to Mr. Brings Plenty with copy of Rule 4. (SLW) (Entered: 12/16/2009)
10 Summons Issued as to Douglas Weber. Two true copies mailed to Mr. Brings Plenty with copy of Rule 4. (SLW) (Entered: 12/16/2009)
11 COMPLAINT signed by Clayton Creek. (Attachments: # 1 Env. − postmarked 12/18/09)(CMS) (Entered: 12/21/2009)
12 MOTION in Support of Complaint re 11 Complaint by Clayton Creek. (CMS) (Entered: 12/21/2009)
13 STATEMENT Regarding Non−Exhaustion of Administrative Remedies by Plaintiff Clayton Creek. (CMS) (Entered: 12/21/2009)
14 MOTION for service by Blaine Brings Plenty. (Attachments: # 1 Summons − attempted service on Douglas Weber, # 2 Summons − attempted service on Attorney General, # 3 Summons − attempted service on Timothy Reisch, # 4 Envelope postmarked 12/23/09)(DJP) (Entered: 12/28/2009)
15 COMPLAINT, signed by David Deloria. (Attachments: # 1 Env. − postmarked 1/6/10)(CMS) (Entered: 01/07/2010)
16 ANALYSIS STATEMENT of Case Regarding American Indian Religious Freedom Act (AIRFA) by Plaintiff Blaine Brings Plenty. (Attachments: # 1 Env. − postmarked 1−08−10)(CMS) (Entered: 01/11/2010)
17 Letter re: additional defendant from Brings Plenty (SLW) (Entered: 01/19/2010)
18 AMENDED COMPLAINT, filed and signed by Blaine Brings Plenty, Shawn Garrnett, Nephi Antelope, Brian Dubray, Bryan White Pipe, Clayton Creek, David Deloria. (Attachments: # 1 Envelope postmarked 1/14/10)(SLW) (Entered: 01/19/2010)
19 ORDER directing plaintiffs to file a second amended complaint signed by all plaintiffs; granting 14 Motion; after receipt of second amended complaint, clerk is to provide plaintiffs with summons forms and USM 285 forms. Signed by Chief Judge Karen E. Schreier on 1/25/2010. (KC) (Entered: 01/25/2010)
21 AMENDED COMPLAINT, filed by Native American Council of Tribes, Blaine Brings Plenty, Shawn Garrnett, Nephi Antelope, Brian Dubray, Bryan White Pipe, Clayton Creek, David Deloria. (Attachments: # 1 Envelope postmarked 2/2/10)(SLW) (Entered: 02/04/2010)

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 6 of 20

02/04/2010 02/05/2010 02/10/2010
02/10/2010 02/10/2010
02/10/2010
02/12/2010
02/17/2010 02/17/2010 02/25/2010 02/25/2010
03/09/2010 03/12/2010 03/12/2010 03/15/2010
03/16/2010 03/17/2010 03/17/2010 03/19/2010
03/25/2010 03/25/2010

22 Letter to plaintiffs enclosing summons and USM 285s. (SLW) (Entered: 02/04/2010)
23 MOTION for Summary Judgment by Shaun Garnette. (Attachments: # 1 Envelope postmarked 2/4/10)(DJP) Modified on 2/8/2010 (DJP). (Entered: 02/08/2010)
24 Summons Issued as to Douglas Weber. Two true copies to USM with USM 285 and copies of Order 19 for Service and Amended Complaint 21 . (SLW) (Entered: 02/10/2010)
25 Summons Issued as to Julie Kalla. Two true copies to USM with USM 285 and copies of Order 19 for Service and Amended Complaint 21 . (SLW) (Entered: 02/10/2010)
26 Summons Issued as to Timothy Reisch. Two true copies to USM with USM 285 and copies of Order 19 for Service and Amended Complaint 21 . (SLW) (Entered: 02/10/2010)
27 Summons Issued as to Marty Jackley. Two true copies to USM with USM 285 and copies of Order 19 for Service and Amended Complaint 21 . (SLW) (Entered: 02/10/2010)
28 MOTION under 25 U.S.C. § 175 for general principle to be applied (163 u.s. 376) by Clayton Creek. (Attachments: # 1 Envelope postmarked 2/11/10)(SLW) (Entered: 02/16/2010)
29 RETURN OF SERVICE Executed upon Defendant Douglas Weber on 2/16/10 (SLW) (Entered: 02/18/2010)
30 RETURN OF SERVICE Executed upon Defendant Julie Kalla on 2/16/10 (SLW) (Entered: 02/18/2010)
31 MOTION for Protective Order by all plaintiffs. (Attachments: # 1 The Plains Indians: Pipes)(SLW) (Entered: 02/25/2010)
32 MOTION to enforce request seeking Injunction and Permanent Restoration by all plaintiffs. (Attachments: # 1 The Seven Sacred Rites, # 2 Envelope postmarked 2/24/10)(SLW) (Entered: 02/25/2010)
33 ANSWER to 21 Amended Complaint by Julie Kalla, Douglas Weber.(Leuning, Scott) (Entered: 03/09/2010)
34 RETURN OF SERVICE Executed upon Defendant Timothy Reisch on 3/5/10 (SLW) (Entered: 03/12/2010)
35 RETURN OF SERVICE Executed upon Defendant Marty Jackley on 3/5/10 (SLW) (Entered: 03/12/2010)
36 REPLY to 33 Answer to Amended Complaint filed by all plaintiffs. (Attachments: # 1 letter regarding plaintiff White Pipe, # 2 complaint, # 3 envelope)(JMM) (Entered: 03/15/2010)
37 MOTION to Withdraw as plaintiff by Bryan White Pipe. (Attachments: # 1 Envelope postmarked 3/12/10)(DJP) (Entered: 03/16/2010)
38 RESPONSE to Motion re 37 MOTION to Withdraw filed by all defendants. (Leuning, Scott) (Entered: 03/17/2010)
39 ORDER granting 37 Motion to Withdraw. Signed by Chief Judge Karen E. Schreier on 3/17/2010. (KC) (Entered: 03/17/2010)
41 Mail Returned as Undeliverable. Mail sent to Shaun Garnette at SDSP (Doc. 39). Called SDSP − he is no longer there and they have no forwarding address. (Attachments: # 1 Envelope marked "dismissed") (DJP) (Entered: 03/19/2010)
42 ANSWER to 21 Amended Complaint by Timothy Reisch, Marty Jackley.(Leuning, Scott) (Entered: 03/25/2010)
43 MOTION to consolidate by Blaine Brings Plenty. (Attachments: # 1 Washington University in St. Louis article, # 2 Answers.com article on Indians and Tobacco, # 3 Envelope postmarked 3/24/10)(DJP) (Entered: 03/25/2010)

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 7 of 20

03/29/2010 03/29/2010 03/29/2010 03/29/2010 03/31/2010 03/31/2010 03/31/2010
04/08/2010 04/12/2010 04/15/2010 04/19/2010 04/20/2010
04/21/2010 04/29/2010
04/29/2010
04/29/2010 04/30/2010 04/30/2010
04/30/2010
05/03/2010 05/03/2010

44 ORDER For Form 52 Report and Scheduling Information. Signed by Chief Judge Karen E. Schreier on 3/29/2010. (KC) (Entered: 03/29/2010)
46 RESPONSE to Motion re 23 MOTION for Summary Judgment filed by all defendants. (Leuning, Scott) (Entered: 03/29/2010)
47 RESPONSE to Motion re 31 MOTION for Protective Order filed by all defendants. (Leuning, Scott) (Entered: 03/29/2010)
48 RESPONSE to Motion re 32 MOTION for Permanent Injunction filed by all defendants. (Leuning, Scott) (Entered: 03/29/2010)
49 Mail Returned as Undeliverable. Mail sent to Shaun Garnette (doc 44) (SLW) (Entered: 03/31/2010)
Remark −updated address on the docket sheet per certificate of service attached to doc 42. Remailed documents 39 and 44. (SLW) (Entered: 03/31/2010)
50 MOTION to Dismiss Defendant's use of state statutes and for Lack of Jurisdiction by Clayton Creek. (Attachments: # 1 Envelope postmarked 3/30/10)(DJP) (Entered: 03/31/2010)
51 MOTION to Dismiss Party (Native American Council of Tribes) by all defendants. (Leuning, Scott) (Entered: 04/08/2010)
52 SUPPORT APPLICATION by Plaintiff Blaine Brings Plenty (JMM) Modified on 4/13/2010 to show Plaintiff Brings Plenty as filer (DJP) (Entered: 04/12/2010)
53 MEMORANDUM in Opposition re 43 MOTION consolidate filed by Marty Jackley, Julie Kalla, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 04/15/2010)
54 Letter from Clayton Creek to Clerk re: Bryan White Pipe (Attachments: # 1 Envelope postmarked 4/15/10) (DJP) (Entered: 04/19/2010)
55 RESPONSE to Motion re 50 MOTION to Dismiss for Lack of Jurisdiction filed by Marty Jackley, Julie Kalla, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 04/20/2010)
56 MEMORANDUM in Opposition re 51 MOTION to Dismiss Party (Native American Council of Tribes) filed by Blaine Brings Plenty. (SLW) (Entered: 04/21/2010)
57 NOTICE of Appearance by Mario Gonzalez on behalf of Nephi Antelope, Blaine Brings Plenty, Clayton Creek, David Deloria, Brian Dubray, Shaun Garnette, Native American Council of Tribes, Bryan White Pipe (Gonzalez, Mario) (Entered: 04/29/2010)
58 MOTION to Extend Deadlines by Nephi Antelope, Blaine Brings Plenty, Clayton Creek, David Deloria, Brian Dubray, Shaun Garnette, Native American Council of Tribes, Bryan White Pipe. (Gonzalez, Mario) (Entered: 04/29/2010)
59 Letter from Clayton Creek (Attachments: # 1 Envelope postmarked April 28,2010) (MWT) (Entered: 04/30/2010)
60 RESPONSE to Motion re 58 MOTION to Extend Deadlines filed by Marty Jackley, Julie Kalla, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 04/30/2010)
61 NOTICE of Appearance by Mario Gonzalez on behalf of Nephi Antelope, Blaine Brings Plenty, Clayton Creek, David Deloria, Brian Dubray, Shaun Garnette, Native American Council of Tribes (Gonzalez, Mario) (Entered: 04/30/2010)
62 MOTION to Extend Deadlines by Nephi Antelope, Blaine Brings Plenty, Clayton Creek, David Deloria, Brian Dubray, Shaun Garnette, Native American Council of Tribes. (Gonzalez, Mario) (Entered: 04/30/2010)
63 Mail Returned as Undeliverable. Mail sent to Shaun Garnette docs 39 and 44. (SLW) (Entered: 05/03/2010)
64 RESPONSE to 52 Support Application filed by Marty Jackley, Julie Kalla, Timothy Reisch, Douglas Weber. (Leuning, Scott) Modified on 5/4/2010 (DJP). (Entered: 05/03/2010)

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 8 of 20

05/06/2010 05/07/2010 05/18/2010
05/28/2010 06/01/2010 06/09/2010
06/15/2010 06/21/2010 06/25/2010 07/08/2010 09/02/2010
11/15/2010 11/16/2010 12/08/2010 12/10/2010 02/22/2011 02/22/2011

65 REPLY to 51 Motion to Dismiss Party, 56 Memorandum in Opposition to Motion filed by Marty Jackley, Julie Kalla, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 05/06/2010)
66 ORDER granting 62 Motion to Extend Deadlines. Parties to meet by 5/14/2010 for Rule 26(f) meeting. Signed by Chief Judge Karen E. Schreier on 5/7/2010. (KC) (Entered: 05/07/2010)
67 ORDER denying 43 Motion; denying 50 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 51 Motion to Dismiss Party ; denying 12 Motion; denying 23 Motion for Summary Judgment; denying 28 Motion; denying 31 Motion for Protective Order; denying 32 Motion for Permanent Injunction. Signed by Chief Judge Karen E. Schreier on 5/18/2010. (KC) (Entered: 05/18/2010)
68 FORM 52 REPORT of Parties Planning Meeting re 44 Order for Form 52 Joint Report. (Leuning, Scott) (Entered: 05/28/2010)
69 SCHEDULING ORDER: Discovery due by 1/18/2011. Motions due by 2/22/2011. Signed by Chief Judge Karen E. Schreier on 6/1/2010. (KC) (Entered: 06/01/2010)
70 MOTION regarding defendants' retaliation against plaintiffs for exercising constitutional rights by Nephi Antelope, Blaine Brings Plenty, Clayton Creek, David Deloria, Brian Dubray, Shaun Garnette, Native American Council of Tribes, Bryan White Pipe. (Attachments: # 1 copy of motion under 25 USC 175 for general principle to be applied, # 2 envelope)(JMM) (Entered: 06/09/2010)
71 AMENDED COMPLAINT UNOPPOSED, filed by Shaun Garnette, Clayton Creek, Blaine Brings Plenty, David Deloria, Nephi Antelope, Native American Council of Tribes, Brian Dubray.(Gonzalez, Mario) (Entered: 06/15/2010)
72 RESPONSE to Motion re 70 MOTION regarding defendants' retaliation against plaintiffs for exercising constitutional rights filed by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 06/21/2010)
73 ANSWER to 71 Amended Complaint by Marty Jackley, Timothy Reisch, Douglas Weber.(Leuning, Scott) (Entered: 06/25/2010)
74 NOTICE (Unlawful intrusions by non−parties to this case) by Clayton Creek (Attachments: # 1 Various attachments, # 2 Envelope postmarked July 7, 2010)(DJP) (Entered: 07/08/2010)
75 ORDER directing plaintiffs to cease making pro se filings and act solely through their counsel of record; denying 70 Motion regarding defendants' retaliation against plaintiffs for exercising constitutional rights. Signed by Chief Judge Karen E. Schreier on 09/02/2010. (KC) (Entered: 09/02/2010)
76 MOTION to Extend Time by Nephi Antelope, Blaine Brings Plenty, Clayton Creek, David Deloria, Brian Dubray, Shawn Garrnett, Native American Council of Tribes. (Gonzalez, Mario) (Entered: 11/15/2010)
77 ORDER granting 76 Motion to Extend. Disclosure of experts due 12/8/2010. Signed by Chief Judge Karen E. Schreier on 11/16/2010. (KC) (Entered: 11/16/2010)
78 MOTION to Extend Unopposed by Nephi Antelope, Blaine Brings Plenty, Clayton Creek, David Deloria, Brian Dubray, Shawn Garrnett, Native American Council of Tribes. (Gonzalez, Mario) (Entered: 12/08/2010)
79 ORDER granting 78 Motion to Extend. Signed by Chief Judge Karen E. Schreier on 12/10/2010. (KC) (Entered: 12/10/2010)
80 MOTION for Summary Judgment by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 02/22/2011)
81 STATEMENT OF Undisputed MATERIAL FACTS re 80 Motion for Summary Judgment by Defendants Marty Jackley, Douglas Weber, Timothy Reisch filed by Marty Jackley, Douglas Weber, Timothy Reisch. (Attachments: # 1 Exhibit A − Affidavit of Jennifer Wagner)(Leuning, Scott) (Entered: 02/22/2011)

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 9 of 20

02/22/2011 03/08/2011 03/08/2011 03/15/2011 03/16/2011 04/06/2011 04/11/2011 05/06/2011 05/09/2011 05/12/2011
06/20/2011 06/23/2011 06/24/2011 07/18/2011
07/25/2011 07/26/2011 08/02/2011 08/12/2011 08/16/2011

82 MEMORANDUM in Support re 80 MOTION for Summary Judgment filed by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 02/22/2011)
83 MOTION to Extend Time by Blaine Brings Plenty, Clayton Creek, David Deloria, Brian Dubray, Shawn Garrnett, Native American Council of Tribes. (Gonzalez, Mario) (Entered: 03/08/2011)
84 ORDER granting 83 Motion to Extend. Response due 4/7/2011. Signed by Chief Judge Karen E. Schreier on 3/8/2011. (KC) (Entered: 03/08/2011)
85 First MOTION to Withdraw as Attorney with Certificate of Service by All Plaintiffs. (Gonzalez, Mario) (Entered: 03/15/2011)
86 REPLY to 85 Motion to Withdraw as Attorney filed by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 03/16/2011)
87 MOTION to Extend by Nephi Antelope, Blaine Brings Plenty, Clayton Creek, David Deloria, Brian Dubray, Shawn Garrnett, Native American Council of Tribes. (Gonzalez, Mario) (Entered: 04/06/2011)
88 ORDER granting 87 Motion to Extend. Signed by Chief Judge Karen E. Schreier on 4/11/11. (JMM) (Entered: 04/11/2011)
89 MOTION to Extend by Nephi Antelope, Blaine Brings Plenty, Clayton Creek, David Deloria, Brian Dubray, Shawn Garrnett, Native American Council of Tribes. (Gonzalez, Mario) (Entered: 05/06/2011)
90 ORDER granting 89 Motion to Extend. Response to motion for summary judgment due 5/23/2011. Signed by Chief Judge Karen E. Schreier on 5/9/2011. (KC) (Entered: 05/09/2011)
91 ORDER granting extension of time to respond to 80 MOTION for Summary Judgment by 6/30/2011; directing attorney to notify plaintiffs of 85 First MOTION to Withdraw as Attorney; directing plaintiffs to notify court by 6/17/2011. Signed by Chief Judge Karen E. Schreier on 5/12/2011. (KC) (Entered: 05/12/2011)
92 MOTION to Appoint Counsel, MOTION to Continue by Blaine Brings Plenty. (Attachments: # 1 5/16/11 letter from Gonzalez Law Firm, # 2 Envelope postmarked 6/18/11)(SLW) (Entered: 06/20/2011)
93 MOTION to have attorney Gonzalez withdraw and for plaintiff Creek to proceed pro se by Clayton Creek. (JMM) (Entered: 06/23/2011)
94 RESPONSE to Motion re 92 MOTION to Appoint Counsel MOTION to Continue filed by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 06/24/2011)
95 ORDER granting 85 Motion to Withdraw as Attorney effective 8/15/11; denying 92 Motion to Appoint Counsel; granting 92 Motion to Continue; granting in part and denying in part 93 Motion. Signed by Chief Judge Karen E. Schreier on 7/18/2011. (KC) (Entered: 07/18/2011)
96 CERTIFICATE OF SERVICE by Nephi Antelope, Blaine Brings Plenty, Clayton Creek, David Deloria, Brian Dubray, Shawn Garrnett, Native American Council of Tribes (Gonzalez, Mario) (Entered: 07/25/2011)
97 MOTION for transfer to the place of the other plaintiffs by Clayton Creek. (Attachments: # 1 Envelope postmarked 7/23/11)(SLW) (Entered: 07/26/2011)
98 RESPONSE to Motion re 97 MOTION to transfer to the place of the other plaintiffs filed by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 08/02/2011)
99 Letter from LDN Spiritual Group re: new council (Attachments: # 1 envelope) (JMM) (Entered: 08/12/2011)
100 MOTION for Hearing to Consolidate Indian Civil Rights Act to Present Case by Clayton Creek. (Attachments: # 1 Order for Form 52 Report and Scheduling Information, # 2 envelope)(JMM) (Entered: 08/16/2011)

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 10 of 20

08/18/2011 08/24/2011 08/29/2011 08/29/2011 08/29/2011 09/09/2011
09/09/2011 09/12/2011 09/20/2011 09/20/2011 09/20/2011 09/20/2011 09/22/2011 09/23/2011 10/05/2011 10/26/2011 11/02/2011 11/02/2011
11/02/2011

101 RESPONSE to Motion re 100 MOTION for Hearing filed by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 08/18/2011)
102 MEMORANDUM in Opposition re 80 MOTION for Summary Judgment filed by Clayton Creek. (Attachments: # 1 Various attachments, # 2 Env. − postmarked 8/23/11)(CMS) (Entered: 08/24/2011)
103 MOTION to Dismiss Party − Nephi Antelope, David Deloria, and Shaun Garnette by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 08/29/2011)
104 AFFIDAVIT in Support re 103 MOTION to Dismiss Party − Nephi Antelope, David Deloria, and Shaun Garnette filed by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 08/29/2011)
105 MEMORANDUM in Support re 103 MOTION to Dismiss Party − Nephi Antelope, David Deloria, and Shaun Garnette filed by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 08/29/2011)
106 ORDER denying 97 Motion to transfer; denying 100 Motion for Hearing; granting 103 Motion to Dismiss Party. Shaun Garnette, Nephi Antelope, and David Deloria are dismissed. Signed by Chief Judge Karen E. Schreier on 9/9/2011. (KC) (Entered: 09/09/2011)
107 MOTION requesting writ of assistance under 42:2000cc−2(a) and 25:3001−13 including various attachments and envelope by Clayton Creek. (JMM) (Entered: 09/09/2011)
108 MOTION to Dismiss Party (Renewed) by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 09/12/2011)
109 ORDER granting in part and denying in part 80 Motion for Summary Judgment. Signed by Chief Judge Karen E. Schreier on 9/20/2011. (KC) (Entered: 09/20/2011)
110 RESPONSE to Motion re 107 MOTION requesting writ of assistance under 42:2000cc−2(a) and 25:3001−13 filed by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 09/20/2011)
111 ORDER appointing counsel. Signed by Chief Judge Karen E. Schreier on 9/20/2011. (KC) (Entered: 09/20/2011)
112 CERTIFICATE OF SERVICE by Marty Jackley, Timothy Reisch, Douglas Weber re 110 Response to Motion (Amended) (Leuning, Scott) (Entered: 09/20/2011)
113 RESPONSE to Motion re 108 MOTION to Dismiss Party (Renewed) filed by All Plaintiffs. (Bollweg, Pamela) (Entered: 09/22/2011)
114 REPLY to Motion Response re 108 MOTION to Dismiss Party (Renewed) filed by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 09/23/2011)
115 ORDER denying as moot 108 Motion to Dismiss Party because the court appointed counsel for NACT. Signed by Chief Judge Karen E. Schreier on October 5, 2011. (Schreier, Karen) (Entered: 10/05/2011)
116 ORDER denying 107 Motion for writ of assistance. Signed by Chief Judge Karen E. Schreier on 10/26/2011. (KC) (Entered: 10/26/2011)
117 MOTION to Strike Defendants' Jury Trial Demand by Blaine Brings Plenty, Clayton Creek, Brian Dubray, Native American Council of Tribes. (Parsons, Ronald) (Entered: 11/02/2011)
118 (FILED IN ERROR) MEMORANDUM in Support re 117 MOTION to Strike Defendants' Jury Trial Demand filed by Blaine Brings Plenty, Clayton Creek, Brian Dubray, Native American Council of Tribes. (Parsons, Ronald) Modified on 11/3/2011 to add text (DJP). (Entered: 11/02/2011)
NOTICE of Filing Error: Memorandum in Support of Motion 118 filed by Plaintiff Clayton Creek, Plaintiff Blaine Brings Plenty, Plaintiff Native American Council of Tribes, Plaintiff Brian Dubray FILED IN ERROR (Parsons, Ronald) (Entered:

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 11 of 20

11/02/2011 12/01/2011 12/02/2011 12/02/2011 12/02/2011
12/14/2011 12/14/2011 12/16/2011 12/16/2011 12/16/2011 12/16/2011 12/28/2011 01/04/2012 01/04/2012
01/05/2012 01/05/2012 01/05/2012
01/06/2012 01/06/2012

11/02/2011)
119 MEMORANDUM in Support re 117 MOTION to Strike Defendants' Jury Trial Demand filed by Blaine Brings Plenty, Clayton Creek, Brian Dubray, Native American Council of Tribes. (Parsons, Ronald) (Entered: 11/02/2011)
120 ORDER granting 117 Motion to Strike Jury Demand. Signed by Chief Judge Karen E. Schreier on 12/1/2011. (KC) (Entered: 12/01/2011)
121 MOTION for Joinder by Gerald J. Thin Elk. (Attachments: # 1 Env. postmarked 12/1/11)(CMS) (Entered: 12/02/2011)
122 Letter to Gerald J. Thin Elk regarding receipt and filing of Motion for Joinder (CMS) (Entered: 12/02/2011)
123 SCHEDULING ORDER: Final Pretrial Conference set for 3/5/2012 at 01:30 PM in Sioux Falls Courtroom 2 before Chief Judge Karen E. Schreier. Court Trial set for 3/20/2012 at 09:00 AM in Sioux Falls Courtroom 2 before Chief Judge Karen E. Schreier. Signed by Chief Judge Karen E. Schreier on 12/2/2011. (KC) (Entered: 12/02/2011)
124 MOTION for Joinder by David W. Jensen. (Attachments: # 1 Envelope postmarked 12/13/11)(SLW) (Entered: 12/14/2011)
125 Letter to Mr. Jensen re: filing motion for joinder (SLW) (Entered: 12/14/2011)
126 MOTION for Joinder by Adrian Fool Bull. (Attachments: # 1 Envelope postmarked 12/15/11)(SLW) (Entered: 12/16/2011)
127 MOTION for Joinder by Aaron Andrews. (Attachments: # 1 Envelope postmarked 12/15/11)(SLW) (Entered: 12/16/2011)
128 Letter to Aaron Andrews and Adrian Fool Bull re: filing motion for joinder, case information (SLW) (Entered: 12/16/2011)
129 ORDER authorizing expenditure of funds pursuant to the Fifth Amended Plan for the Attorney Admission and Pro Bono Fund. Signed by Chief Judge Karen E. Schreier on 12/16/2011. (KC) (Entered: 12/16/2011)
130 REPLY to 124 Motion for Joinder, 121 Motion for Joinder, 127 Motion for Joinder, 126 Motion for Joinder filed by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 12/28/2011)
131 (FILED IN ERROR) MOTION to Dismiss Plaintiff Brian Dubray by All Plaintiffs. (Bollweg, Pamela) Modified on 1/5/2012 to add text (DJP). (Entered: 01/04/2012)
NOTICE of Filing Error: Motion to Dismiss 131 filed by Plaintiff Nephi Antelope, Plaintiff Clayton Creek, Plaintiff David Deloria, Plaintiff Blaine Brings Plenty, Plaintiff Bryan White Pipe, Plaintiff Shawn Garrnett, Plaintiff Native American Council of Tribes, Plaintiff Brian Dubray FILED IN ERROR (Bollweg, Pamela) (Entered: 01/04/2012)
132 MOTION to Dismiss Plaintiff Brian Dubray by Blaine Brings Plenty, Clayton Creek, Brian Dubray, Native American Council of Tribes. (Bollweg, Pamela) (Entered: 01/05/2012)
133 RESPONSE to Motion re 132 MOTION to Dismiss Plaintiff Brian Dubray filed by Marty Jackley, Timothy Reisch, Douglas Weber. (Leuning, Scott) (Entered: 01/05/2012)
134 RESPONSE to Motion re 124 MOTION for Joinder, 121 MOTION for Joinder, 127 MOTION for Joinder, 126 MOTION for Joinder filed by Blaine Brings Plenty, Clayton Creek, Brian Dubray, Native American Council of Tribes. (Bollweg, Pamela) (Entered: 01/05/2012)
135 ORDER granting 132 Motion to Dismiss plaintiff Brian Dubray. Signed by Chief Judge Karen E. Schreier on 1/6/2012. (KC) (Entered: 01/06/2012)
136 ORDER denying 121 Motion for Joinder; denying 124 Motion for Joinder; denying 126 Motion for Joinder; denying 127 Motion for Joinder. Signed by Chief Judge Karen

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 12 of 20

01/06/2012 01/06/2012 01/06/2012 01/06/2012 01/09/2012 01/09/2012 01/09/2012
01/10/2012
02/03/2012 02/09/2012 02/29/2012
02/29/2012
02/29/2012 02/29/2012 03/05/2012 03/05/2012 03/12/2012 03/19/2012 03/20/2012

E. Schreier on 1/6/2012. (KC) (Entered: 01/06/2012)
137 MOTION for Joinder by David W. Jensen. (Attachments: # 1 Env. − postmarked 1−5−12)(CMS) (Entered: 01/06/2012)
138 NOTICE of Appearance by James Ellis Moore on behalf of Marty Jackley, Timothy Reisch, Douglas Weber (Moore, James) (Entered: 01/06/2012)
139 (FILED IN ERROR) CIVIL COVER SHEET (DJP) Modified on 1/6/2012 (DJP). (Entered: 01/06/2012)
NOTICE of Filing Error: Civil Cover Sheet 139 FILED IN ERROR (DJP) (Entered: 01/06/2012)
140 REPLY to 130 Objection to Motion for Joinder filed by David W. Jensen. (Attachments: # 1 Envelope postmarked January 6, 2012)(DJP) (Entered: 01/09/2012)
141 MOTION for Joinder by Gerald J. Thin Elk. (Attachments: # 1 Envelope postmarked 1/6/2012)(DJP) (Entered: 01/09/2012)
142 REPLY to 130 Defendant's Objection to Motion for Joinder filed by Gerald J. Thin Elk. (DJP) (Additional attachment(s) added on 1/9/2012: # 1 Envelope postmarked January 6, 2012) (DJP). (Main Document 142 replaced on 1/25/2012) (DJP). (Entered: 01/09/2012)
143 SCHEDULING ORDER: Final Pretrial Conference set for 3/12/2012 at 01:30 PM in Sioux Falls Courtroom 2 before Chief Judge Karen E. Schreier. Court Trial set for 3/27/2012 at 09:00 AM in Sioux Falls Courtroom 2 before Chief Judge Karen E. Schreier. Signed by Chief Judge Karen E. Schreier on 1/10/2012. (KC) (Entered: 01/10/2012)
144 Notice of Withdrawal and Substitution of Attorney by Scott Hendricks Leuning on behalf of Marty Jackley, Timothy Reisch, Douglas Weber. Attorney Scott Hendricks Leuning terminated. (Leuning, Scott) (Entered: 02/03/2012)
145 ORDER denying 137 Motion for Joinder; denying 141 Motion for Joinder. Signed by Chief Judge Karen E. Schreier on 2/9/2012. (KC) (Entered: 02/09/2012)
146 APPLICATION for Order of Writ of Habeas Corpus Ad Prosequendum for Blaine Brings Plenty by Plaintiffs Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Attachments: # 1 Text of Proposed Order Writ of Habeas Corpus Ad Prosequendum for Blaine Brings Plenty)(Bollweg, Pamela) (Entered: 02/29/2012)
147 APPLICATION for Order of Writ of Habeas Corpus Ad Prosequendum for Clayton Creek by Plaintiffs Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Attachments: # 1 Text of Proposed Order Writ of Habeas Corpus Ad Prosequendum For Clayton Creek)(Bollweg, Pamela) (Entered: 02/29/2012)
148 WRIT of habeas corpus ad prosequendum for Clayton Creek. Signed by Judge Chief Judge Karen E. Schreier on 2/29/12. (DJP) (Entered: 02/29/2012)
149 WRIT of habeas corpus ad prosequendum for Blaine Brings Plenty. Signed by Judge Chief Judge Karen E. Schreier on 2/29/12. (DJP) (Entered: 02/29/2012)
150 Pretrial Submissions by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes.(Bollweg, Pamela) (Entered: 03/05/2012)
151 Pretrial Submissions by Marty Jackley, Timothy Reisch, Douglas Weber.(Moore, James) (Entered: 03/05/2012)
152 Minutse from Final Pretrial Conference held on 3/12/2012 before Chief Judge Karen E. Schreier (Court Reporter Jill Connelly) (DJP) (Entered: 03/12/2012)
153 DESIGNATION Of Deposition Testimony by Defendants Marty Jackley, Timothy Reisch, Douglas Weber. (Attachments: # 1 Deposition of Richard Two Dogs, # 2 Deposition of Roy Stone)(Moore, James) (Entered: 03/19/2012)
154 DESIGNATION Of Deposition Testimony by Plaintiffs Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Attachments: # 1 Exhibit 1 −

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 13 of 20

03/20/2012
03/20/2012
03/21/2012 03/21/2012
03/22/2012 03/22/2012 03/23/2012 03/23/2012 03/26/2012 03/26/2012 03/26/2012 03/27/2012 03/28/2012 03/29/2012 03/29/2012 03/29/2012 03/29/2012 03/29/2012 04/19/2012

Deposition transcript of Roy Stone, # 2 Exhibit 2 − Deposition transcript of Richard Two Dogs)(Bollweg, Pamela) (Entered: 03/20/2012)
155 ACKNOWLEDGEMENT OF SERVICE Executed as to 149 Writ of Habeas Corpus Ad Prosequendum for Blaine Brings Plenty Acknowledgement filed by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Bollweg, Pamela) (Entered: 03/20/2012)
156 ACKNOWLEDGEMENT OF SERVICE Executed as to 148 Writ of Habeas Corpus Ad Prosequendum for Clayton Creek Acknowledgement filed by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Bollweg, Pamela) (Entered: 03/20/2012)
157 SUBPOENA for Production of Documents returned (Bollweg, Pamela) (Entered: 03/21/2012)
158 OBJECTIONS to Deposition Designations by Plaintiffs Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes re 153 Designation of Deposition Testimony. (Attachments: # 1 Exhibit Exhibit 2 − Deposition of Richard Two Dogs)(Bollweg, Pamela) (Entered: 03/21/2012)
159 Exhibit List by Dennis Kaemingk, Douglas Weber..(Moore, James) (Entered: 03/22/2012)
160 SUPPLEMENT by Defendants Marty Jackley, Dennis Kaemingk, Douglas Weber re 153 Designation of Deposition Testimony completed errata sheet of Richard Two Dogs. (Moore, James) (Entered: 03/22/2012)
161 RESPONSE to 158 Objections to Deposition Designations, filed by All Defendants. (Moore, James) (Entered: 03/23/2012)
162 Exhibit List by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes..(Bollweg, Pamela) (Entered: 03/23/2012)
163 SUPPLEMENT by Defendants Marty Jackley, Dennis Kaemingk, Douglas Weber re 153 Designation of Deposition Testimony Roy Stone's signed errata sheet. (Moore, James) (Entered: 03/26/2012)
164 Exhibit List Supplemental Exhibit LIst by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes..(Bollweg, Pamela) (Entered: 03/26/2012)
165 ORDER re 158 Objections to Deposition Designations, Signed by Chief Judge Karen E. Schreier on 3/26/2012. (KC) (Entered: 03/26/2012)
Court Trial began on 3/27/2012 before Chief Judge Karen E. Schreier (Court Reporter Jill Connelly) (SLW) (Entered: 03/29/2012)
Court Trial continued on 3/28/2012 before Chief Judge Karen E. Schreier (Court Reporter Jill Connelly) (SLW) (Entered: 03/29/2012)
166 Court Trial completed on 3/29/2012 before Chief Judge Karen E. Schreier (Court Reporter Jill Connelly) (SLW) (Entered: 03/29/2012)
Oral MOTION to Dismiss Party Marty Jackley by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (SLW) (Entered: 03/29/2012)
167 Oral ORDER granting Oral Motion to Dismiss Party. Party Marty Jackley terminated. Signed by Chief Judge Karen E. Schreier on 3/29/12. (SLW) (Entered: 03/29/2012)
168 Plaintiffs Exhibit List by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes.(SLW) (Entered: 03/29/2012)
169 Defendants Exhibit List by Marty Jackley, Dennis Kaemingk, Douglas Weber.(SLW) (Main Document 169 replaced on 3/29/2012) (SLW). (Entered: 03/29/2012)
170 TRANSCRIPT of Proceedings re 166 VOLUME I of III, Court Trial − Completed held on March 27 − 29, 2012 before Judge Karen E. Schreier. Court Reporter/Transcriber: Jill Connelly, Telephone number 605−330−6669. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 14 of 20

04/19/2012 04/20/2012 05/18/2012
05/31/2012 05/31/2012 06/20/2012 07/06/2012 07/09/2012 07/13/2012
07/16/2012 07/16/2012 07/16/2012 07/24/2012
07/24/2012 07/25/2012
08/01/2012 08/02/2012

that date it may be obtained through PACER. Redaction Request due 5/14/2012. Redacted Transcript Deadline set for 5/24/2012. Release of Transcript Restriction set for 7/23/2012. (Attachments: # 1 VOLUME II of III, # 2 VOLUME III of III)(JC) (Entered: 04/19/2012)
171 NOTICE of Filing of Official Transcript re: 166 Court Trial − Completed. Notice mailed to non−ecf counsel. (JC) (Entered: 04/19/2012)
172 BRIEFING SCHEDULE: Plaintiff shall serve and file a brief by 5/16/2012. Responses due by 6/8/2012. Plaintiff may serve and file a reply brief by 6/22/2012. Signed by Chief Judge Karen E. Schreier on 04/20/2012.(KC) (Entered: 04/20/2012)
173 BRIEF by Plaintiffs Blaine Brings Plenty, Clayton Sheldon Creek and Native American Council of Tribes − Post Trial Brief. (Attachments: # 1 Exhibit A − Federal BOP Program Statement allowing the use of tobacco in religious ceremonies)(Bollweg, Pamela) (Entered: 05/18/2012)
174 MOTION to Extend Deadlines Briefing Deadlines by Douglas Weber. (Moore, James) (Entered: 05/31/2012)
175 ORDER granting 174 Motion to Extend Deadlines. Responses due by 6/22/2012. Plaintiff may serve and file a reply brief by 7/10/2012. Signed by Chief Judge Karen E. Schreier on 5/31/2012. (KC) (Entered: 05/31/2012)
176 TRIAL BRIEF Post−Trial Brief by Dennis Kaemingk, Douglas Weber.(Moore, James) (Entered: 06/20/2012)
177 MOTION to Extend re 175 Order on Motion to Extend Deadlines to July 16, 2012 by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Bollweg, Pamela) (Entered: 07/06/2012)
178 ORDER granting 177 Motion to Extend. Plaintiffs' post−trial reply brief is due July 16, 2012. Signed by Chief Judge Karen E. Schreier on 7/9/2012. (KC) (Entered: 07/09/2012)
179 Motion to File Statement of Interest by United States. (Attachments: # 1 Supplement Memorandum in Support, # 2 Text of Proposed Order Proposed Order, # 3 Exhibit Statement of Interest of United States)(Songer, Michael) Modified on 7/13/2012 to remove ex parte restriction per Attorney Songer (DJP). (Entered: 07/13/2012)
180 ORDER granting 179 Motion to file a statement of interest. Signed by Chief Judge Karen E. Schreier on 7/16/2012. (KC) (Entered: 07/16/2012)
181 BRIEF by Interested Party United States of America Statement of Interest. (Songer, Michael) (Entered: 07/16/2012)
182 REPLY to 173 Brief, 176 Trial Brief filed by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Bollweg, Pamela) (Entered: 07/16/2012)
183 MOTION for Leave to to file Response to Statement of Interest to United States by Dennis Kaemingk, Douglas Weber. (Attachments: # 1 Exhibit Exhibit A to motion, # 2 Exhibit Exhibit A to Defendants' Response to United States' Statement of Interest)(Moore, James) (Entered: 07/24/2012)
184 ORDER granting 183 Motion for Leave to file response. Signed by Chief Judge Karen E. Schreier on 7/24/2012. (KC) (Entered: 07/24/2012)
185 RESPONSE to 181 Brief filed by Dennis Kaemingk, Douglas Weber. (Attachments: # 1 Ex A − Nebr. Dept. of Corr. Servs. Admin. Reg. 208.1; Idaho Dept. of Corr. Policy 403; Wyo. Dept. of Corr. Policy and Proc. #5.600)(Moore, James) (Entered: 07/25/2012)
186 Post−Hearing Brief by Plaintiff Clayton Sheldon Creek. (Attachments: # 1 Order Granting Permission to File a Statement of Interest, # 2 Envelope postmarked July 31, 2012)(DJP) (Entered: 08/01/2012)
187 AFFIDAVIT of Douglas Weber re 186 Brief. (Moore, James) (Entered: 08/02/2012)

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 15 of 20

09/19/2012 09/19/2012 11/20/2012 11/20/2012
12/04/2012 12/04/2012 12/04/2012
12/05/2012 01/25/2013 01/28/2013 02/14/2013 02/14/2013 02/14/2013 02/14/2013
02/14/2013 02/14/2013 02/22/2013 02/22/2013 02/22/2013

188 MEMORANDUM OPINION AND ORDER re court trial. Signed by Chief Judge Karen E. Schreier on 9/19/2012. (KC) (Entered: 09/19/2012)
189 AMENDED MEMORANDUM OPINION AND ORDER re court trial. (Amended to correct footnote 26.) Signed by Chief Judge Karen E. Schreier on 9/19/2012. (KC) (Entered: 09/19/2012)
190 NOTICE by Dennis Kaemingk, Douglas Weber Defendants' Proposed Prospective Relief (Attachments: # 1 Exhibit Ex A − Policy 1.1.D.3)(Moore, James) (Entered: 11/20/2012)
191 STATEMENT by Plaintiffs Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes of Proposed Injunctive Relief. (Attachments: # 1 Exhibit A − Plaintiffs' Proposed Revisions to DOC Policy − Redline Version)(Parsons, Ronald) (Entered: 11/20/2012)
192 OBJECTION by Defendants Dennis Kaemingk, Douglas Weber re 191 Statement, to Plaintiffs' Proposed Injunctive Relief. (Moore, James) (Entered: 12/04/2012)
193 AFFIDAVIT of Mary Montoya re 192 Objection. (Moore, James) (Entered: 12/04/2012)
194 OBJECTION by Plaintiffs Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes to 190 Defendants' Proposed Prospective RElief. (Attachments: # 1 Exhibit A − US Government, # 2 Exhibit B − Minnesota, # 3 Exhibit C − Minnesota Statute, # 4 Exhibit D − Montana, # 5 Exhibit E − New Mexico, # 6 Exhibit F − Oklahoma, # 7 Exhibit G − Utah)(Parsons, Ronald) Modified on 12/5/2012 to create link (DJP). (Entered: 12/04/2012)
195 Letter from George Blue Bird (Attachments: # 1 Envelope postmarked December 4, 2012) (MWT) (Entered: 12/05/2012)
196 REMEDIAL ORDER re 189 Memorandum Opinion and Order. Signed by U.S. District Judge Karen E. Schreier on 1/25/2013. (KC) (Entered: 01/25/2013)
197 JUDGMENT in favor of Native American Council of Tribes, Blaine Brings Plenty, Clayton Sheldon Creek against Dennis Kaemingk, Douglas Weber. Signed by U.S. District Judge Karen E. Schreier on 1/28/2013. (KC) (Entered: 01/28/2013)
198 (FILED IN ERROR) NOTICE OF APPEAL as to 197 Judgment (paid $455 Appellate Filing fee; receipt number 0869−1567778) by Dennis Kaemingk, Douglas Weber. (Moore, James) Modified on 2/14/2013 (CMS). (Entered: 02/14/2013)
199 CERTIFICATE of No Transcript Order by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 02/14/2013)
NOTICE of Filing Error: Notice of Appeal 198 filed by Defendant Dennis Kaemingk, Defendant Douglas Weber FILED IN ERROR (Moore, James) (Entered: 02/14/2013)
200 NOTICE OF APPEAL as to 197 Judgment, 189 Amended Memorandum Opinion and Order, 196 Remedial Order; (paid $455 Appellate Filing fee; receipt number 0869−1567802) by Dennis Kaemingk, Douglas Weber. (Attachments: # 1 Appellant's Form A)(Moore, James) Modified on 2/14/2013 to add additional links (CMS). (Entered: 02/14/2013)
COURT REPORTER Information: Jill Connelly, U.S. District Court, 400 S. Phillips Ave., Sioux Falls, SD 57104 − (605) 330−6669 (CMS) (Entered: 02/14/2013)
201 TRANSMITTAL of Notice of Appeal to 8th Circuit Court of Appeals re 200 Notice of Appeal, (CMS) (Entered: 02/14/2013)
202 BILL OF COSTS by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Parsons, Ronald) (Entered: 02/22/2013)
203 MOTION for Attorney Fees and Costs by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Parsons, Ronald) (Entered: 02/22/2013)
204 AFFIDAVIT in Support re 203 MOTION for Attorney Fees and Costs filed by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Attachments: # 1 Exhibit A − Attorney Hours, # 2 Exhibit B − Attorney Bollweg

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 16 of 20

02/23/2013
02/25/2013 02/25/2013
03/08/2013 03/08/2013 03/08/2013 03/08/2013
03/15/2013 03/15/2013 03/29/2013
03/29/2013
04/01/2013 04/05/2013 04/12/2013 05/01/2013 05/14/2013
07/29/2013 07/30/2013 07/30/2013 07/31/2013

Professional Profile, # 3 Exhibit C − Attorney Parsons Professional Profile, # 4 Exhibit D − Attorney Show Professional Profile, # 5 Exhibit Bills of Costs)(Parsons, Ronald) (Entered: 02/22/2013)
205 MEMORANDUM in Support re 203 MOTION for Attorney Fees and Costs filed by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Parsons, Ronald) (Entered: 02/23/2013)
206 USCA Case Number 13−1401 for 200 Notice of Appeal, filed by Dennis Kaemingk, Douglas Weber. (CMS) (Entered: 02/25/2013)
207 USCA BRIEFING Scheduling Order as to 200 Notice of Appeal, filed by Dennis Kaemingk, Douglas Weber. Transcripts due by 04/08/13. (CMS) (Entered: 02/25/2013)
208 OBJECTION by Defendants Dennis Kaemingk, Douglas Weber re 202 Bill of Costs Exceptions to Bill of Costs. (Moore, James) (Entered: 03/08/2013)
209 MOTION to Stay by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 03/08/2013)
210 MEMORANDUM in Support re 209 MOTION to Stay filed by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 03/08/2013)
TRANSMITTAL of Subsequent Filing to 8th Circuit Court of Appeals re 210 Memorandum in Support of Motion, 209 MOTION to Stay (DJP) (Entered: 03/08/2013)
211 OBJECTION by Defendants Dennis Kaemingk, Douglas Weber re 203 MOTION for Attorney Fees and Costs. (Moore, James) (Entered: 03/15/2013)
212 AFFIDAVIT of James E. Moore re 211 Objection in support of. (Moore, James) (Entered: 03/15/2013)
213 RESPONSE to 211 Objection to 203 Plaintiffs' Motion for Attorney Fees and Costs filed by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Bollweg, Pamela) Modified on 3/29/2013 to add link to motion (SLW). (Entered: 03/29/2013)
214 MEMORANDUM in Opposition re 209 MOTION to Stay filed by Blaine Brings Plenty, Clayton Sheldon Creek, Native American Council of Tribes. (Parsons, Ronald) (Entered: 03/29/2013)
TRANSMITTAL of Subsequent Filing to 8th Circuit Court of Appeals re 214 Memorandum in Opposition to Motion (DJP) (Entered: 04/01/2013)
215 Letter from Clerk's office to COA enclosing Court Trial Transcript and paper exhibits from Court Trial (DJP) (Entered: 04/05/2013)
216 MEMORANDUM in Support re 209 MOTION to Stay filed by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 04/12/2013)
217 Letter from Clerk to USCOA transmitting deposition transcripts of Roy Stone and Richard Two Dogs (DJP) (Entered: 05/01/2013)
218 Costs Taxed in amount of $ $597.02 in favor of the plaintiffs, Native American Council of Tribes, Blaine Brings Plenty and Clayton Creek, and against the defendants Douglas Weber and Dennis Kaemingk. (jh) (Entered: 05/14/2013)
219 ORDER granting 203 Motion for Attorney Fees; denying 209 Motion to Stay. Signed by U.S. District Judge Karen E. Schreier on 7/29/13. (KC) (Entered: 07/29/2013)
TRANSMITTAL of Subsequent Filing to 8th Circuit Court of Appeals re 219 Order on Motion for Attorney Fees, Order on Motion to Stay (DJP) (Entered: 07/30/2013)
220 JUDGMENT on Attorney Fees. Signed by U.S. District Judge Karen E. Schreier on 7/30/13. (KC) (Entered: 07/30/2013)
TRANSMITTAL of Subsequent Filing to 8th Circuit Court of Appeals re 220 Judgment on Attorney Fees (DJP) (Entered: 07/31/2013)

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 17 of 20

08/05/2013 08/05/2013 08/08/2013 09/27/2013 10/08/2013 10/08/2013 11/06/2013 04/25/2014 04/25/2014 05/19/2014 06/06/2014 06/06/2014 10/20/2014 10/21/2014 12/03/2014
12/18/2014 12/18/2014 12/18/2014 12/31/2014 12/31/2014

221 NOTICE OF APPEAL as to 220 Judgment on Attorney Fees (paid $455 Appellate Filing fee; receipt number 0869−1660123) by Dennis Kaemingk, Douglas Weber. (Attachments: # 1 Appellant's Form A)(Moore, James) (Entered: 08/05/2013)
222 TRANSMITTAL of Notice of Appeal to 8th Circuit Court of Appeals re 221 Notice of Appeal (DJP) (Entered: 08/05/2013)
223 USCA Case Number and Appeal Briefing Schedule Order for 221 Notice of Appeal filed by Dennis Kaemingk, Douglas Weber. USCA Case Number: 13−2745. (Attachments: # 1 Briefing Schedule)(CMS) (Entered: 08/09/2013)
224 MOTION under 42:1981 for transfer by Clayton Sheldon Creek. (Attachments: # 1 Creek envelope September 26, 2013)(DJP) (Entered: 09/27/2013)
225 MEMORANDUM in Opposition re 224 MOTION under 42:1981 for transfer filed by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 10/08/2013)
226 AFFIDAVIT in Opposition re 224 MOTION under 42:1981 for transfer Susan Jacobs filed by Dennis Kaemingk, Douglas Weber. (Attachments: # 1 Ex A − Creek's kite, # 2 Ex B − Protective Custody Refusal Form)(Moore, James) (Entered: 10/08/2013)
227 ORDER denying 224 Motion for transfer. Signed by U.S. District Judge Karen E. Schreier on 11/6/2013. (KC) (Entered: 11/06/2013)
228 OPINION of USCA as to 200 Notice of Appeal, filed by Dennis Kaemingk, Douglas Weber (TAL) (Entered: 04/25/2014)
229 JUDGMENT of USCA affirming the judgments of the district court as to 200 Notice of Appeal, filed by Dennis Kaemingk, Douglas Weber (TAL) (Entered: 04/25/2014)
230 MANDATE from 8th Circuit COA affirming the decision of the District Court as to 221 Notice of Appeal filed by Dennis Kaemingk, Douglas Weber, 200 Notice of Appeal, filed by Dennis Kaemingk, Douglas Weber (TAL) (Entered: 05/19/2014)
231 SATISFACTION OF JUDGMENT re 220 Judgment on Attorney Fees by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 06/06/2014)
RECEIVED Exhibits from Court of Appeals (SLW) (Entered: 06/06/2014)
232 RECEIPT for Return of Exhibits by Pamela R. Bollweg on behalf of Native American Council of Tribes re 166 Court Trial − Completed. Exhibits Returned: 1−3, 6−17, 19−36 (SLW) (Entered: 10/20/2014)
233 RECEIPT for Return of Exhibits by James Ellis Moore on behalf of Dennis Kaemingk, Douglas Weber re 166 Court Trial − Completed. Exhibits Returned: 101, 103, 105−118, 120−124, 126, 127, 130−149 (SLW) (Entered: 10/21/2014)
234 MOTION to Amend/Correct 196 Remedial Order by Clayton Sheldon Creek (pro se). (Attachments: # 1 Eighth Circuit Opinion, # 2 Motion of the Appellees as Nunc Pro Tunc for Permission to Enforce District Court Judgment in Support of Plaintiffs−Appellees, # 3 Envelope postmarked 12/2/14)(SLW) (Entered: 12/03/2014)
235 MEMORANDUM in Opposition re 234 MOTION to Amend/Correct 196 Order filed by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 12/18/2014)
236 AFFIDAVIT in Opposition re 234 MOTION to Amend/Correct 196 Order Jennifer Wagner filed by Dennis Kaemingk, Douglas Weber. (Attachments: # 1 Ex A − DOC Policy 1.3.C.7)(Moore, James) (Entered: 12/18/2014)
237 AFFIDAVIT in Opposition re 234 MOTION to Amend/Correct 196 Order Susan Jacobs filed by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 12/18/2014)
238 MEMORANDUM in Support re 234 MOTION to Amend/Correct 196 Order filed by Clayton Sheldon Creek. (Attachments: # 1 Envelope postmarked 12/30/14)(SLW) (Entered: 12/31/2014)
239 STATEMENT by Plaintiff Clayton Sheldon Creek re 234 MOTION to Amend/Correct 196 Order. (Attachments: # 1 Attachments)(SLW) (Entered: 12/31/2014)

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 18 of 20

02/10/2015 02/12/2015 02/12/2015 02/23/2015 03/11/2015
07/24/2015
08/24/2015
09/17/2015 09/23/2015
11/18/2015 11/18/2015 11/18/2015
12/03/2015 12/03/2015 12/09/2015 12/10/2015 12/16/2015

240 Letter from Robert Horse. (Attachments: # 1 Envelope postmarked 2/8/15) (SLW) (Entered: 02/10/2015)
241 ORDER appointing Pamela R. Bollweg and Ronald A. Parsons, Jr., as counsel under the Fifth Amended Plan for the Attorney Admission and Pro Bono Fund. Signed by U.S. District Judge Karen E. Schreier on 2/12/2015. (KC) (Entered: 02/12/2015)
242 POST−TRIAL MEMORANDUM OF LAW by Plaintiff Clayton Sheldon Creek re 234 MOTION to Amend/Correct 196 Order. (Attachments: # 1 Herbalism p. 134−135, # 2 Appellate Brief, # 3 Envelope postmarked 2−11−15)(DJP) (Entered: 02/12/2015)
243 Post−Trial Penological BRIEF for Isolated Retaliation and Discriminatory Treatment by Plaintiff Clayton Sheldon Creek (Attachments: # 1 Appendix A− Court Orders and docket, # 2 Envelope postmarked 2/20/15)(SLW) (Entered: 02/23/2015)
244 STATEMENT of Unconstitutional Isolated Retaliation of the Plaintiff Clayton Creek by Plaintiff Clayton Sheldon Creek (Attachments: # 1 Letter from Clayton Creek to Judge Schreier, # 2 Letter from Dolores Jean Irene Creek to Clayton Creek, # 3 Letter from the State Board of Pardons and Paroles, # 4 Envelope postmarked 3/9/15)(SLW) (Entered: 03/11/2015)
245 MOTION under 18 U.S.C. §3626(b)(4) to Amendment Remedial Order for Retaliation by Clayton Sheldon Creek. (Attachments: # 1 Ltr from Clerk of Courts to Clayton Creek dated June 3, 2014, # 2 COA Opinion dated April 25, 2014, # 3 Envelope postmarked July 23, 2014)(DJP) (Entered: 07/27/2015)
246 MOTION to Enforce Court's Injunctive Relief and to Obtain Additional Relieve to Vindicate Religious Rights (pro se) by Clayton Sheldon Creek. (Attachments: # 1 7/21/15 Letter from Eighth Circuit Court of Appeals, # 2 Doc 173, # 3 Doc 191, # 4 Gomez v. Running Deer, # 5 Envelope postmarked 8/21/15)(SLW) (Entered: 08/24/2015)
247 MOTION to Amend/Correct 196 Order by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 09/17/2015)
248 ORDER AMENDING REMEDIAL ORDER denying as moot 234 Motion to Amend/Correct; denying as moot 245 Motion; denying as moot 246 Motion to Enforce ; granting 247 Motion to Amend Remedial Order. Signed by U.S. District Judge Karen E. Schreier on 9/23/15. (SLW) (Entered: 09/23/2015)
249 LETTER Received from Clayton Creek to Clerk's office dated 11/13/15 (Attachments: # 1 Envelope postmarked November 16, 2015) (DJP) (Entered: 11/18/2015)
250 MOTION for modification of 248 Order Amending Remedial Order by Clayton Sheldon Creek. (DJP) (Entered: 11/18/2015)
251 MEMORANDUM in Support re 250 MOTION for modification of 248 Order Amending Remedial Order filed by Clayton Sheldon Creek. (Attachments: # 1 Ex A − Program Statement dated 12/31/2004, # 2 Project Application approved 11/5/15, # 3 Ltr from COA to Clayton Sheldon Creek dated 10/20/15)(DJP) (Entered: 11/18/2015)
252 MOTION for Attorney Fees by Clayton Sheldon Creek. (Attachments: # 1 November 18, 2015 ltr from Julia Chavez to Clayton Creek, # 2 Envelope postmarked December 2, 2015)(DJP) (Entered: 12/03/2015)
253 MEMORANDUM in Support re 252 MOTION for Attorney Fees filed by Clayton Sheldon Creek. (DJP) (Entered: 12/03/2015)
254 RESPONSE to 250 Motion for Miscellaneous Relief filed by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 12/09/2015)
255 MEMORANDUM in Opposition re 252 MOTION for Attorney Fees filed by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 12/10/2015)
256 REPLY to Motion Response re 250 MOTION for modification filed by Clayton Sheldon Creek. (Attachments: # 1 Emvelope postmarked December 15, 2015)(DJP) (Entered: 12/16/2015)

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 19 of 20

01/07/2016
01/11/2016 01/11/2016 02/05/2016 02/10/2016 02/22/2016 02/22/2016 03/14/2016 05/04/2016 05/05/2016 05/05/2016 05/12/2016 07/05/2016
10/24/2016 10/24/2016 11/14/2016 11/25/2016 11/30/2016 12/06/2016 12/14/2016

257 ORDER of USCA denying petition for rehearing en banc, denying petition for rehearing by panel, denying motion for new trial and motion for attorney's fees as to 221 Notice of Appeal filed by Dennis Kaemingk, Douglas Weber, 200 Notice of Appeal, filed by Dennis Kaemingk, Douglas Weber (TAL) (Entered: 01/08/2016)
258 AFFIDAVIT in Support re 252 MOTION for Attorney Fees filed by Clayton Sheldon Creek. (Attachments: # 1 Envelope postmarked 1/7/16)(SLW) (Entered: 01/11/2016)
259 REPLY to Motion Response re 250 MOTION for modification filed by Clayton Sheldon Creek. (SLW) (Entered: 01/11/2016)
260 MOTION Under Rule 15(c) Fed. R. Civ. P. to Amend Complaint by Clayton Sheldon Creek. (Attachments: # 1 Envelope Postmarked 2−4−16)(JLS) (Entered: 02/05/2016)
261 RESPONSE to Motion re 260 MOTION to Amend/Correct filed by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 02/10/2016)
262 MOTION for Permanent Injunction by Clayton Sheldon Creek. (Attachments: # 1 Envelope Postmarked 2−19−16)(JLS) (Entered: 02/22/2016)
263 BRIEF in Support by Plaintiff Clayton Sheldon Creek re 262 MOTION for Permanent Injunction. (JLS) (Entered: 02/22/2016)
264 MEMORANDUM in Support re 250 MOTION to Modify filed by Clayton Sheldon Creek. (Attachments: # 1 Doc 261 (scanned as received), # 2 Envelope postmarked 3/10/16)(SLW) (Entered: 03/14/2016)
265 MISCELLANEOUS SUBMISSION by Plaintiff Clayton Sheldon Creek (Attachments: # 1 Envelope postmarked 5/3/16) (SLW) (Entered: 05/05/2016)
266 MOTION for Attorney Fees (pro se) by Clayton Sheldon Creek. (SLW) (Entered: 05/05/2016)
267 MEMORANDUM in Support re 266 MOTION for Attorney Fees filed by Clayton Sheldon Creek. (Attachments: # 1 Letter dated 12/3/10)(SLW) (Entered: 05/05/2016)
268 RESPONSE to 266 Motion for Attorney Fees filed by Dennis Kaemingk, Douglas Weber. (Moore, James) (Entered: 05/12/2016)
269 ORDER denying 250 Motion for Modification of 248 Order Amending Remedial Order ; denying 252 Motion for Attorney Fees; denying 260 Motion to Amend/Correct; denying 262 Motion for Permanent Injunction; denying 266 Motion for Attorney Fees. Signed by U.S. District Judge Karen E. Schreier on 7/5/2016. (JLS) (Entered: 07/05/2016)
270 MOTION to Modify re 196 Remedial Order by Clayton Sheldon Creek. (Attachments: # 1 Envelope Postmarked 10−21−16)(JLS) (Entered: 10/24/2016)
271 BRIEF in Support of Motion by Plaintiff Clayton Sheldon Creek re 270 MOTION to Modify re 196 Order. (Attachments: # 1 Letter from US Court of Appeals 8th Circuit dated 10−14−16, # 2 Copy of the Seven Sacred Rites) (JLS) (Entered: 10/24/2016)
272 RESPONSE to Motion re 270 MOTION to Modify re 196 Order filed by All Defendants. (Attachments: # 1 Certificate of Service)(Moore, James) (Entered: 11/14/2016)
273 MOTION to modify Order by Clayton Sheldon Creek. (Attachments: # 1 Envelope postmarked November 23 (with nothing on the back))(DJP) (Entered: 11/28/2016)
274 RESPONSE to Motion re 270 MOTION to Modify re 196 Order, 273 MOTION to modify Order filed by All Defendants. (Attachments: # 1 Certificate of Service)(Moore, James) (Entered: 11/30/2016)
275 MOTION for Hearing by Clayton Sheldon Creek. (Attachments: # 1 Envelope postmarked 12/5/16)(SLW) (Entered: 12/06/2016)
276 MOTION for Further Relief by Clayton Sheldon Creek. (Attachments: # 1 Envelope postmarked 12/12/16)(SLW) (Entered: 12/14/2016)

Case: 4:09-cv-4182 As of: 10/08/2017 12:22 PM CDT 20 of 20

12/14/2016 12/27/2016 01/13/2017 01/30/2017 05/17/2017
06/15/2017 06/29/2017 06/29/2017 08/09/2017

277 MEMORANDUM in Support re 276 MOTION for Further Relief filed by Clayton Sheldon Creek. (Attachments: # 1 Correspondence, # 2 Project Application)(SLW) (Entered: 12/14/2016)
278 RESPONSE to Motion re 275 MOTION for Hearing, 276 MOTION for Further Relief filed by Dennis Kaemingk, Douglas Weber. (Attachments: # 1 Certificate of Service)(Moore, James) (Entered: 12/27/2016)
280 MOTION to Appoint Replacement Counsel by Clayton Sheldon Creek. (Attachments: # 1 Envelope Postmarked 1−12−17)(JLS) (Entered: 01/13/2017)
281 MOTION for Certified Question Regarding Modification and Amendment by Clayton Sheldon Creek. (Attachments: # 1 Letter from 8th Circuit COA returning document, # 2 Envelope postmarked 1/27/17)(SLW) (Entered: 01/30/2017)
282 MOTION to Amend re 1 Complaint by Clayton Sheldon Creek. (Attachments: # 1 Proposed Amended Complaint, # 2 Exhibit − IRR dated 2−1−16, # 3 Exhibit − Project Application − October 2015 (best scan), # 4 Exhibit − Copy of Order doc 189 with highlighting, # 5 Envelope Postmarked 5−16−17)(JLS) (Entered: 05/18/2017)
283 RESPONSE to Motion re 282 MOTION to Amend/Correct 1 Complaint filed by All Defendants. (Attachments: # 1 Certificate of Service)(Moore, James) (Entered: 06/15/2017)
284 MOTION to grant amend inter alia by Clayton Sheldon Creek. (Attachments: # 1 Envelope Postmarked 6−28−17)(JLS) (Entered: 06/29/2017)
285 BRIEF in Support re 284 MOTION to grant amend inter alia filed by Clayton Sheldon Creek. (JLS) (Entered: 06/29/2017)
286 ORDER denying 270 Motion to modify the remedial order; denying 273 Motion to modify order; denying 275 Motion for Hearing; denying 276 Motion for further relief; denying 279 Ex Parte Motion to remove current counsel; denying 280 Motion to Appoint Replacement Counsel; denying 281 Motion for a certified question regarding modification and amendment; denying without prejudice 282 Motion to Amend; denying without prejudice 284 Motion to amend inter alia. Signed by U.S. District Judge Karen E. Schreier on 8/9/17. (DJP) (Entered: 08/09/2017)

 
 2013 WL 310633 Only the Westlaw citation is currently available.
United States District Court, D. South Dakota, Southern Division.
NATIVE AMERICAN COUNCIL OF TRIBES, Blaine Brings Plenty, and Clayton Creek, Plaintiffs,
v. Douglas WEBER, Warden of the South Dakota
State Penitentiary, and Dennis Kaemingk, Secretary of the Department of Corrections,
Defendants.
Civ. No. 09–4182–KES. |
Jan. 25, 2013.
Attorneys and Law Firms
Pamela R. Bollweg, Ronald A. Parsons, Jr., Sara E. Show, Johnson, Heidepriem & Abdallah, LLP, Sioux Falls, SD, for Plaintiffs.
James Ellis Moore, Michele A. Munson, Woods, Fuller, Shultz & Smith, PC, Sioux Falls, SD, for Defendants.

I. Legal Standard The Prison Litigation Reform Act (PLRA) provides that “[p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1). Specifically, “[t]he court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1). “Narrow tailoring requires a fit between the remedy’s ends and the means chosen to accomplish those ends.” Brown v. Plata, ––– U.S. ––––, ––––, 131 S.Ct. 1910, 1939, 179 L.Ed.2d 969 (2011) (internal quotation omitted). “The scope of the remedy must be proportional to the scope of the violation ... [and] must be determined with reference to the constitutional violations established by the specific plaintiffs before the court.” Id. at 1940. Additionally, the court “must give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Id. at 1929. With these principles in mind, the court will now set out plaintiffs’ remedy.

REMEDIAL ORDER
KAREN E. SCHREIER, District Judge.
*1 Plaintiffs, Native American Council of Tribes (NACT), Blaine Brings Plenty, and Clayton Creek, succeeded in a court trial against defendants, Douglas Weber and Dennis Kaemingk, showing that a complete ban of tobacco in Department of Correction (DOC) facilities violates the Religious Land Use and Institutionalized Persons Act (RLUIPA). Native Am. Council of Tribes v. Weber, ––– F.Supp.2d ––––, No. Civ. 09–4182, 2012 WL 4119652 (D.S.D. Sept. 19, 2012). Plaintiffs sought injunctive relief in order to use tobacco during their religious ceremonies that take place at penal institutions.1 This court ordered the parties to meet and confer about the terms of a narrowly tailored tobacco policy and if unable to agree, to submit separate proposals and objections to the court. The parties failed to agree on a specific proposal. Accordingly, the parties have submitted to the court their proposals and objections.

II. Remedy Before discussing the specific relief to which plaintiffs are entitled, it is useful to articulate the basic premise that guides this order: A complete ban of tobacco in South Dakota penal institutions is a substantial burden on the exercise of the Native American religion. Accordingly, inmates who participate in the Native American religion must be afforded the opportunity to use tobacco during certain religious ceremonies. Thus, all remedies should be implemented in a manner to fulfill this objective.
1. Mixtures used during Native American ceremonies that include tobacco will not contain more than 1 percent tobacco by volume. Plaintiffs’ expert witness, Richard Bernard Moves Camp, testified that tobacco need only be in the mixture and that even a 1 percent amount is suitable. In light of defendants’ expressed security concerns relating to the existence of tobacco within DOC facilities, the court concludes that a 1 percent limit is narrowly drawn, is not too intrusive, and corrects the violation. Plaintiffs have
1

not proffered any rationale as to why a 10 percent amount is needed. Based on plaintiffs’ own expert testimony, which established that only a 1 percent amount is necessary for religious exercise, a 10 percent amount would not be a narrowly drawn remedy.
*2 Defendants also argue that the tobacco in the mixtures should be cherryblend tobacco. Defendants have not offered any rationale as to why only cherry-blend tobacco should be allowed. Plaintiffs, however, argue that cherryblend tobacco is not easily smoked because it damages the pipe used for smoking. Therefore, the court will not impose a restriction on the type of tobacco used in the mixtures.
2. Tobacco ties and prayer flags can contain mixtures that include tobacco. All tobacco ties and prayer flags used during ceremonies must be burned at the conclusion of the ceremonies. Plaintiffs demonstrated at trial that tobacco ties and prayer flags which include tobacco play an important role in the exercise of their religion. Eliminating tobacco from tobacco ties and prayer flags, as proposed by defendants, undermines this court’s previous determination that banning tobacco substantially burdens plaintiffs’ right to exercise their religion. The requirement that the mixture used in the ties and flags contain only 1 percent tobacco, coupled with the requirement that the ties and flags be burned at the conclusion of the ceremonies, alleviates defendants’ security concerns, making the remedy narrowly tailored and limited in its intrusiveness.
3. The mixtures used for tobacco ties and prayer flags must be ground, but the mixtures that are smoked in pipes do not need to be ground. Defendants argue that grinding the mixtures reduces the possibility of the tobacco being separated from the rest of the mixture and subsequently inserted into the “black market.” Plaintiffs have no objections to grinding the tobacco mixture that is used for tobacco ties and prayer flags. Additionally, grinding the tobacco mixture that is used in tobacco ties and prayer flags is a “narrowly drawn” remedy that ensures the exercise of the Native American religion is free from a substantial burden. Thus, the mixtures used for tobacco ties and prayer flags must be ground.
Separately, plaintiffs argue that smoking the mixture after it is ground is difficult because smoking the ground mixture “is like breathing dust into one’s lungs” and can cause the person to “get sick off of it.” Docket 194 at ¶ 2;

Docket 170 at 193. Defendants maintain their “separation” objection with regards to the mixture used for smoking. With respect to defendants’ objection, decreasing the amount of tobacco present in the mixture to only 1 percent reduces the possibility of separation. Plaintiffs, on the other hand, introduced evidence at trial that showed smoking the ground mixture may lead to physical ailments. Because the 1 percent limit severely decreases the possibility of separation, plaintiffs’ health concerns carry more weight here. Thus, the tobacco mixtures used for smoking does not need to be ground.
4. The mixtures used during ceremonies will be provided by volunteers who are cleared by the DOC.2 The volunteers must be eligible for and receive a “pink-tag” or some equivalent clearance level.3 Volunteers who violate the tobacco policy may be refused admission to any DOC facility and may be subject to prosecution. *3 Plaintiffs argue that requiring “pink-tag” certification, which requires several hours of training, “would, in effect, be equivalent to a ban on tobacco, because it would be virtually impossible to recruit any volunteer to comply with such a burdensome requirement,” and thus, “orangetag” volunteers should be allowed to provide the mixtures. Docket 194 at ¶ 4. But the evidence presented at trial contradicts plaintiffs’ objection because the volunteer who previously provided the mixture, Mary Montoya, had received “pink-tag” certification. Plaintiffs’ argument that finding a volunteer who is willing to receive “pink-tag” certification is “virtually impossible” carries no weight when, in fact, it was the standard operating procedure prior to the tobacco ban.
Moreover, volunteers with “orange-tag” certification require a constant escort from DOC staff. Defendants’ staffing concerns regarding the allowance of “orange-tag” volunteers to bring in mixtures is persuasive because forcing the DOC to increase its staffing obligations increases DOC costs. An increase in costs is an adverse impact on the operation of DOC facilities to which the court must give substantial weight when fashioning a remedy. Brown, 131 S.Ct. at 1929. Thus, the court’s remedy necessitating “pink-tag” volunteers is sufficient to remedy the violation without adversely impacting the DOC facilities.
5. Mixtures provided by the approved volunteers must be brought into the facility in a sealed, clear plastic bag that is subject to search and marked for identification. Mixtures must be premixed to
2

comply with the 1 percent tobacco by volume requirement.
6. Each DOC facility will determine where ceremonies take place within the facility, including the locations where tobacco ties and prayer flags are made. The DOC may require certain activities that involve tobacco to take place under video surveillance. The video surveillance requirement does not apply to the sweat lodge ceremony. Video surveillance is not a condition precedent to the happening of sweat lodge ceremonies because such ceremonies are conducted in the dark within the sweat lodge. Plaintiffs established at trial the significant role that the sweat lodge ceremony and the presence of tobacco involved in such ceremony plays in their religious exercise.
Defendants propose that tobacco should not be present inside the sweat lodge because DOC staff cannot supervise that area, implying that inmates will be able to separate the tobacco from the mixture and then insert the tobacco into the “black market.” There are several facts that eliminate defendants’ concerns. First, only a limited number of inmates can fit inside of a sweat lodge. Second, the environment inside of a sweat lodge is very dark, thus making it difficult for an inmate to successfully separate tobacco from other ingredients in the mixtures. Third, the mixtures will only include 1 percent tobacco, also making separation difficult. Fourth, the non-smoking mixtures will be ground, making it difficult to separate the tobacco from the rest of the mixture. Fifth, inmates can be searched following the sweat lodge ceremony to guarantee that they are not attempting to smuggle tobacco into the “black market.” Therefore, tobacco can be used during the sweat lodge ceremony even though the inside of the sweat lodge is not under video surveillance.
7. Inmates participating in the Native American religion can participate in the making of tobacco ties and prayer flags. *4 Defendants’ propose that inmates should not be allowed to make tobacco ties or prayer flags because there are not enough staff members to properly supervise the inmates to ensure tobacco is not improperly removed from the mixtures. As noted above, removing all tobacco from tobacco ties and prayer flags was established at trial to be a substantial burden on plaintiffs’ religious exercise. Thus, tobacco ties and prayer flags will continue to be made by inmates prior to ceremonies in which the ties and flags are used. The threat of inmates improperly removing tobacco during these events is minimized by requiring the tobacco in the mixture to be ground prior to the volunteer

bringing it to the prison, by decreasing the percentage of tobacco in the mixture to 1 percent, and by implementing a video surveillance requirement. With these limitations, there is no reason to limit the number of participants as defendants propose.
8. The process for handling and distributing tobacco ties and prayer flags will revert back to the procedures used prior to the tobacco ban. Plaintiffs’ proposal asks for pipe carriers to be allowed to handle and distribute the tobacco ties and prayer flags prior to ceremonies. Neither party has shown how or why the old system for handling and distributing the tobacco ties and prayer flags was inadequate. Thus, the court concludes that the previous way of handling and distributing tobacco ties and prayer flags should be reinstated.
9. An abuse of ceremonial tobacco by an inmate will result in a one-year suspension from any ceremony that includes tobacco.
10. Further Instructions: All other procedures and processes should revert back to the manner in which they were done prior to the tobacco ban and consistent with this order. As discussed at the beginning of this section, inmates who practice the Native American religion must be afforded the opportunity to use tobacco during certain religious ceremonies. Because the DOC previously permitted and implemented a system in which members of the Native American religion used tobacco during ceremonies, reimplementing such a system with the additional requirements discussed above is limited in its intrusiveness and still provides a narrowly tailored remedy to plaintiffs.
Additional proposals were submitted by plaintiffs and defendants that were not addressed above. Docket 190; 191. These additional proposals were not specifically addressed in this order because they did not rely on any specific reasoning, legal or practical, as to why they should be implemented in addition to the rules set forth in this order. The court refuses to fashion its remedy based on conclusory proposals that lack any foundation in law or practicality. In addition, without any accompanying rationale the court cannot determine whether the proposals satisfy the requirements created by the PLRA. Thus, such proposals will not be implemented.
Accordingly, it is
3

ORDERED that defendants are enjoined from banning tobacco used during Native American religious ceremonies.
*5 IT IS FURTHER ORDERED that defendants must amend their policies and procedures to comply with this order.

All Citations Not Reported in F.Supp.2d, 2013 WL 310633

Footnotes

1

Defendants’ policy banning all tobacco, including tobacco used in Native American ceremonies, in DOC facilities was the

precursor to plaintiffs’ suit.

2

The DOC can implement procedures for mandating and documenting the reimbursement of the volunteers by the inmates for

those volunteers who seek reimbursement.

3

“Pink-tags” are given to (1) individuals who enter an adult DOC institution more than once a month, have reviewed the DOC

volunteer handbook, have completed the required information requested within the handbook, and have completed a minimum

of thirty-two hours of core curriculum during pre-service training and a minimum of four hours of mandatory topics during

annual in-service training; (2) staff members who have not completed “blue-tag” training; and (3) contract psychiatrists or other

specialists. Docket 190–1 at 1–4.

4

 
 750 F.3d 742 (2014)
NATIVE AMERICAN COUNCIL OF TRIBES; Blaine Brings Plenty; Clayton Sheldon Creek, Plaintiffs-Appellees v.
Douglas WEBER, Warden of the South Dakota State Penitentiary; Dennis Kaemingk, Secretary of the Department of Corrections, DefendantsAppellants United States of America, Amicus on Behalf of Appellee(s). Native American Council of Tribes; Blaine Brings Plenty; Clayton Sheldon Creek, Plaintiffs-Appellees v.
Douglas Weber, Warden of the South Dakota State Penitentiary; Dennis Kaemingk, Secretary of the Department of Corrections, DefendantsAppellants.
Nos. 13-1401, 13-2745.
United States Court of Appeals, Eighth Circuit.
Submitted: December 18, 2013. Filed: April 25, 2014.
744*744 Ronald A. Parsons, Jr., argued, Pamela Bollweg, on the brief, Sioux Falls, SD, for PlaintiffsAppellees.
James Ellis Moore, argued, Michele Ann Munson, on the brief, Sioux Falls, SD, for DefendantsAppellants.
April J. Anderson, argued, Mark Lenard Gross, on the brief, Washington, D.C, for amicus on behalf of Appellee(s).
Before BYE, BRIGHT, and SMITH, Circuit Judges.
BRIGHT, Circuit Judge.
In this appeal, we consider the South Dakota Department of Corrections' ("SDDOC") decision to prohibit tobacco use by Native American inmates during religious activities. In 2009, the Native American Council of Tribes ("NACT") and South Dakota Native American inmates Blaine Brings Plenty and Clayton Creek (collectively "inmates")[1]brought suit against prison officials from the SDDOC (collectively "defendants")[2]claiming that 745*745 the tobacco ban substantially burdened the exercise of their religious beliefs in violation of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc-1(a). After a three-day bench trial, the district

court[3]granted injunctive relief to the inmates and directed the parties confer regarding a revised tobacco policy. On failure to agree, the district court entered a remedial order that, among other things, limited the proportion of tobacco in the mixture distributed to inmates for religious purposes to no more than one percent. The defendants appeal the grant of injunctive relief, including the remedial order. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Restrictions on Tobacco Use in South Dakota Prisons
The SDDOC operates six adult correctional facilities in the state of South Dakota.[4]Native Americans comprise twenty-seven percent of prisoners incarcerated in SDDOC facilities, which constitutes the highest concentration of Native American prisoners of any state prison population. Plaintiffs Blaine Brings Plenty and Clayton Creek are two Native American inmates who are members of Lakota[5] Sioux tribes and are currently incarcerated in South Dakota state prisons. Plaintiff NACT is a nonprofit organization run by Native American prisoners in the South Dakota State Penitentiary. NACT oversees Native American religious activities within SDDOC facilities.
Over the past sixteen years, the SDDOC has increasingly placed restrictions on the use of tobacco in its correctional facilities. The first restriction came in 1998 in the form of a smoking ban in South Dakota prisons. Douglas Weber, the former Director of Prison Operations, testified that the SDDOC adopted the smoking ban in part to alleviate health hazards related to second-hand smoke. Two years later, in 2000, the SDDOC also banned chewing tobacco in order to promote inmates' health and curb "issues with sanitation." However, the SDDOC continued to permit inmates' use of tobacco during Native American religious activities.
Despite these restrictions, problems with unauthorized use of tobacco persisted. In response, the SDDOC convened Native American spiritual leaders in October 2004 to discuss strategies to curb tobacco abuse. As a result of this meeting, the SDDOC decreased the amount of tobacco in the ceremonial mixture to fifty-percent tobacco and fifty-percent red willow bark, and decreased the quantity of mixture distributed to one-quarter cup. The SDDOC also prohibited inmates from storing tobacco in their cells and instead required them to store tobacco in locked boxes and retrieve it from prison staff prior to using it for religious activities.
746*746 In July of 2005, the SDDOC further reduced the amount of tobacco in the mixture to twentyfive percent and the quantity distributed to one-eighth cup. Prison staff also began grinding the mixture of tobacco and red willow bark to prevent inmates from extracting the tobacco from the mixture and using it for non-religious purposes. Additionally, NACT self-imposed a six-month ban on use of the tobacco mixture for inmates who violated tobacco policy.
On October 19, 2009, the SDDOC changed its policy to a complete ban on tobacco use, including tobacco use by inmates during Native American religious activities. The record includes two documents issued that same day. First, in a letter to "Tribal Liaisons, Spiritual Leaders, Pipe Carriers, and Sundancers" announcing the ban, Weber emphasized that unauthorized tobacco use by inmates continues to be a problem in SDDOC correctional facilities. He further explained:
Medicine Men and Spiritual Leaders, who lead ceremonies at our facilities, have brought to our attention that tobacco is not traditional to the Lakota/Dakota ceremonies and that it is too addictive to be used for ceremonies. They have requested that tobacco be removed from Native American

Ceremonies so that the participants of these ceremonies will focus on their spiritual paths and not abusing the tobacco. Effective 10/19/09, the SDDOC will follow the advice of the respected Medicine Men and Spiritual Leaders and remove tobacco from Native American Ceremonies.
Second, Jennifer Wagner, then Cultural Activities Coordinator for the SDDOC, sent an email to prison staff stating, "Effective today, 10/19, tobacco is being removed from all Native American Ceremonies per the request of Medicine Men who lead ceremonies at our facilities." In the event that inmates complained about the new policy, she advised staff to "remind [inmates] that we are honoring the request of the respected Medicine Men and are going back to their traditional ways." This suit for injunctive relief challenges the defendants' most recent decision banning inmates' use of tobacco during Lakota religious activities.
B. Tobacco Use in the Lakota Religion[6]
At trial, Richard Bernard Moves Camp, a descendant of traditional Lakota healers and a traditional healer himself, testified to the importance of tobacco in the Lakota religion and described the various ways in which tobacco plays a central role in Lakota religious activities. According to Moves Camp, the Lakota people use tobacco to make tobacco ties and prayer flags. Tobacco ties are made with tobacco, string, and cloth, and are burned after they are offered. Each tobacco tie represents a prayer. Prayer flags are larger forms of a tobacco tie and are unique in that they each represent one of the four cardinal directions. Moves Camp also explained that tobacco plays a central role in sweat lodge ceremonies, during which individuals sit around heated stones inside a covered lodge, sing songs, pass water, pray, and smoke the sacred pipe. According to Moves Camp, a sweat lodge serves as "the anchor and the livelihood of a family to prayer." Tobacco is also fundamental to pipe ceremonies. Moves Camp stated that the "smoke is significant" and represents 747*747 the spirit of all beings as well as the creation story. Notably, Moves Camp testified that a mixture of tobacco and red willow bark that contains only "five percent or even one percent" tobacco would be appropriate for Lakota pipe ceremonies.
Moves Camp emphasized that "tobacco is a really important part of our culture and ceremonies." He noted that "[t]obacco has been around the indigenous people for over a thousand years before the Europeans made contact with our people" and he described tobacco as the "center" of the Lakota way of life. According to Moves Camp, those practicing the Lakota religion would have difficulty praying without tobacco. He stated that depriving a Lakota person of tobacco would be "like taking a Bible away from the church."
C. Plaintiffs' Religious Beliefs
Creek and Brings Plenty also testified about their religious beliefs and agreed that Moves Camp's religious beliefs are consistent with their own.
a. Clayton Creek
Creek was born on the Cheyenne River Sioux Reservation and is an enrolled member of the Cheyenne River Sioux Tribe. At the time of trial, Creek was incarcerated at the Mike Durfee State Prison in Springfield, South Dakota. Creek testified that from a young age, he regularly used tobacco when practicing the Lakota religion. At the age of sixteen, Creek became a pipe carrier. A pipe carrier tends to the sacred pipe, which is an honorable duty passed down from generation to generation to those who exemplify knowledge of the significance and purpose of the pipe.

Prior to his incarceration, Creek used different pipe mixtures for different ceremonies. He used onehundred percent tobacco for sweat lodge ceremonies, tobacco ties, and prayer flags, and a mixture of red willow bark and tobacco for pipe ceremonies. Creek testified that no relative or traditional healer has ever instructed him to smoke exclusively red willow bark.
Creek testified that "[t]obacco is essential to our belief. Tobacco is an offering. It's one of the greatest offerings we can give to our Higher Power. He gives us life, and he gives us what we have today. In return, we offer ... tobacco." Since the tobacco ban took effect, Creek has continued to attend pipe ceremonies and sweat lodge ceremonies at the Mike Durfee State Prison. However, he testified that his "whole essential belief system has been taken" from him.
b. Blaine Brings Plenty
Brings Plenty was raised on the Pine Ridge Indian Reservation and is an enrolled member of the Oglala Sioux Tribe. At the time of trial, he was incarcerated at the South Dakota State Penitentiary in Sioux Falls, South Dakota. Brings Plenty testified that he has practiced the Lakota religion since childhood and has always used tobacco in Lakota religious ceremonies. Brings Plenty emphasized the importance of tobacco in Lakota religious ceremonies, explaining that "the spirits take the smoke up to Tunkashila, the Wankan Tanka, the Great Mystery."
Brings Plenty has participated in the sweat lodge ceremony at the Penitentiary since his arrival in 1989. He serves as a pipe carrier and a fire keeper. As a fire keeper, he prepares the rocks prior to the sweat lodge ceremony, smudges the sweat lodge with sage, and puts tobacco into the fire pit. Brings Plenty also guards the sweat lodge and works with Mary Montoya, a volunteer in the religious and cultural activities program at the Penitentiary, to 748*748 ensure that the sweat lodge ceremony remains safe for all participants.
Brings Plenty explained that tobacco plays a central role in the practice of his religious beliefs. He testified that when the tobacco ban took effect, he felt as though a part of him had been taken away.
D. Issues Presented
After considering the evidence at trial, the district court concluded that the defendants violated the inmates' rights under RLUIPA by banning the inmates' use of tobacco during Lakota religious activities. The district court enjoined the SDDOC from banning tobacco and issued a remedial order governing the religious use of tobacco by inmates in South Dakota prisons. The defendants filed a timely notice of appeal. With respect to the inmates' RLUIPA claim, the defendants contend that the district court erred by concluding (1) that the tobacco ban substantially burdened the inmates' exercise of their religion, (2) that the tobacco ban did not further the defendants' compelling government interest in maintaining prison security, and (3) that the tobacco ban was not the least restrictive means of achieving the defendants' interest in prison security. The defendants also argue that the district court erred by denying the admission of an exhibit detailing prison disciplinary proceedings against Native American inmates misusing tobacco in the prison system. Finally, the defendants contend that the district court's remedial order is not narrowly tailored to remedy the RLUIPA violation.
We turn to a discussion of these issues in the context of the aforementioned testimony presented at trial.[7]
II. RLUIPA

We first address whether the defendants violated RLUIPA before turning to their remaining claims. We review the district court's "findings of fact for clear error and [its] legal rulings de novo." Singson v. Norris, 553 F.3d 660, 662 (8th Cir.2009).
It is well-accepted that "[p]rison inmates retain constitutional rights protected by the First Amendment, including the right to free exercise of religion." Fegans v. Norris, 537 F.3d 897, 902 (8th Cir.2008). Despite this promise, the prison context is one "where it is so easy for governmental officials with so much power over inmates' lives to deny capriciously one more liberty to those who have already forfeited so many others." Yellowbear v. Lampert, 741 F.3d 48, 53 (10th Cir.2014) (citing Douglas Laycock & Luke W. Goodrich, RLUIPA: Necessary, Modest, and UnderEnforced, 39 Fordham Urb. L.J. 1021, 1021, 1025-41 (2012)). Congress granted additional protection for religious exercise by institutionalized persons through the enactment of RLUIPA. See Fegans,537 F.3d at 902.
RLUIPA provides that "[n]o government shall impose a substantial burden on the religious exercise" of an inmate unless the government demonstrates that the imposition of the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc-1(a)(1)(2) ("Section 3"); see Van Wyhe v. Reisch, 581 F.3d 639, 654 (8th Cir.2009) (explaining that RLUIPA "prohibits substantial burdens on religious exercise, without regard to discriminatory intent"). Section 3 of RLUIPA limits protection to circumstances in which "the substantial burden is 749*749 imposed in a program or activity that receives Federal financial assistance." 42 U.S.C. § 2000cc-1(b)(1). RLUIPA defines "religious exercise" broadly as including "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." Id. § 2000cc-5(7)(A).
Inmates retain a private cause of action to enforce RLUIPA protections. See id. § 2000cc-2(a) (explaining that "[a] person may assert a violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government"). To succeed on such a claim, an inmate must initially produce "prima facie evidence" that the challenged government practice "substantially burdens [his] exercise of religion." Id. § 2000cc-2(b). If the inmate produces such evidence, the burden shifts to the government to prove every other element of the claim (i.e. that its practice furthers a compelling government interest and there are no less restrictive means of furthering that interest). Id.
A. The Inmates' Burden
As noted, "[t]o make out a prima facie RLUIPA claim against a state official, an inmate must show, as a threshold matter, that there is a substantial burden on his ability to exercise his religion." Van Wyhe, 581 F.3d at 655 (citation omitted) (internal quotation marks omitted). In essence, an inmate must carry two discrete burdens. The inmate must show that the government's practice imposes (1) a substantial burden (2) on a religious exercise. See Murphy v. Mo. Dep't of Corr., 506 F.3d 1111, 1115 (8th Cir.2007)(emphasis added) ("[T]he existence of a sincerely held tenet or belief that is central or fundamental to an individual's religion is a prerequisite to a `substantially burdened' claim under RLUIPA.") Here, the district court determined that the inmates' use of tobacco during Lakota ceremonies satisfies the definition of a "religious exercise" under RLUIPA. Indeed, the inmates' testimony illuminates the importance of tobacco to the exercise of their religious beliefs — beliefs that began from a young age and have continued throughout adulthood. Moreover, the defendants do not dispute that the inmates' use of tobacco during Lakota ceremonies satisfies RLUIPA's definition of "religious exercise." The evidence in the record and the findings of the district court demonstrate that the inmates' have satisfied their burden of showing that their use of tobacco constitutes a "religious exercise" under RLUIPA.

The inmates must also establish that the tobacco ban substantially burdens the exercise of their religious beliefs in the prison system. See 42 U.S.C. § 2000cc-1(a).
In order for a government practice to substantially burden a religious exercise, it must significantly inhibit or constrain conduct or expression that manifests some central tenet of a person's individual religious beliefs; must meaningfully curtail a person's ability to express adherence to his or her faith; or must deny a person reasonable opportunities to engage in those activities that are fundamental to a person's religion.
Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir.2008) (citation omitted) (internal quotation marks omitted).
The inmates testified that since childhood, the use of tobacco has played an important role in their religious practices. This testimony underscores the significant burden that the tobacco ban has placed on the exercise of their religious beliefs. We emphasize some of the important evidence. Brings Plenty testified that he felt as though a part of him had been taken away when the tobacco ban took effect. Creek 750*750 similarly testified that the tobacco ban stripped him of his "whole essential belief system." This testimony is consistent with that of Moves Camp who described tobacco as the "center" of the Lakota way of life. The record shows that the tobacco ban has "meaningfully curtail[ed] [the inmates'] ability to express adherence to [their] faith." Id.
In opposition, the defendants contend that the tobacco ban cannot substantially burden the inmates' religious exercise because tobacco can be replaced by red willow bark — a readily-available traditional alternative to tobacco. We reject the defendants' invitation to define the contours of the inmates' religious beliefs. By claiming that tobacco can be easily replaced by red willow bark, the defendants urge us to weigh the importance of tobacco vis-a-vis other substances in the Lakota religion. As the amicus United States observes, this type of inquiry into what is or is not central to a particular religion has no place in an RLUIPA analysis. See 42 U.S.C. § 2000cc-5(7)(A) (defining "religious exercise" as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief (emphasis added)); see also Hernandez v. Comm'r of Internal Revenue, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) ("It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds."). Furthermore, we have consistently said that in the context of a RLUIPA claim, "[n]o `doctrinal justification' is required to support the religious practice allegedly infringed." Gladson v. Iowa Dep't of Corr., 551 F.3d 825, 833 (8th Cir.2009). Therefore, that some Native Americans practicing the Lakota religion would consider red willow bark a sufficient alternative to tobacco does not undermine the decision of the district court.
The defendants also contend that our unpublished decision Runningbird v. Webersupports their position. 198 Fed.Appx. 576 (8th Cir.2006). We disagree. In Runningbird,we concluded that the South Dakota State Penitentiary's tobacco restrictions, including its limitation on the amount of tobacco disbursed, did not substantially burden the inmates' religious exercise in violation of RLUIPA. Id. at 578-79. But the policy at issue in Runningbird limited tobacco use and did not ban it. See Runningbird v. Weber, No. Civ. 03-4018-RHB, 2005 WL 1363927, at *2-3 (D.S.D. June 8, 2005). That critical distinction undercuts any persuasive support that Runningbird may have with respect to the case at hand. Thus, as the district court correctly observed, Runningbird does not offer persuasive support for the defendants' assertion that they have not substantially burdened the inmates' exercise of their religious beliefs.
We conclude that the record amply shows that the inmates have satisfied their burden. See 42 U.S.C. § 2000cc-2(b). Accordingly, the inmates will prevail on their RLUIPA claim unless the defendants can show that the tobacco ban "(1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc1(a)(1)-(2), -2(b).
B. Compelling Government Interest
At trial, the defendants asserted that they banned tobacco to further their compelling government interest in promoting order and security within SDDOC prisons. Indeed, we have stated that "[a] prison's interest in order and security is always compelling." Fowler v. Crawford, 534 F.3d 931, 939 (8th Cir.2008). However, after considering the evidence presented 751*751 at trial, the district court found that the defendants implemented the tobacco ban "to effectuate what [they] believed was the advice of the medicine men and spiritual leaders regarding the Lakota religion rather than due to security reasons" in order to enforce "what they determined to be the more `traditional' Lakota belief." Accordingly, the district court concluded that the defendants did not satisfy their burden of showing that they banned tobacco in furtherance of a compelling government interest.
While we acknowledge that the prison administrators' expertise must be given deference, see Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), we need not decide whether the defendants banned tobacco in furtherance of a compelling government interest in order and security because even if we assume they did, a ban on tobacco use is not the least restrictive means of achieving that interest.[8]
C. Least Restrictive Means
To defeat the inmates RLUIPA claim, the defendants must show that the tobacco ban was the "the least restrictive means of furthering [their] compelling governmental interest" in order and security. 42 U.S.C. § 2000cc-1(a)(2). In order to satisfy this burden, the defendants must come forward with specific evidence of no less restrictive means available. Murphy v. Miss. Dep't of Corr., 372 F.3d 979, 989 (8th Cir.2004). The defendants have failed to satisfy their burden on this issue.
The inmates and Moves Camp discussed several alternatives to banning tobacco that could be implemented to alleviate tobacco abuse. Those alternatives include (1) limiting those who can construct tobacco ties and prayer flags to pipe carriers and fire keepers; (2) mandating that prison staff or volunteers transport tobacco ties, prayer flags, and tobacco pipe mixture to the site of their religious ceremonies; (3) burning the tobacco immediately after use; (4) implementing additional security measures, such as searches after a sweat lodge ceremony, and more severe penalties for misusing tobacco, such as cell restriction, disciplinary segregation or administrative segregation; and (5) decreasing the amount of the tobacco in the mixture to as low as one to five percent.
At trial, Weber rejected each of the alternatives as ineffective or unfeasible. But other than Weber testifying that some of the alternatives were "talked about," the defendants offered no evidence that they meaningfully considered any of the alternatives or tested the effectiveness of such alternatives before effectuating the tobacco ban. See id.; see also Yellowbear, 741 F.3d at 63 ("[T]he government's burden here isn't to mull the claimant's proposed alternatives, it is to demonstrate the claimant's alternatives are ineffective to achieve the government's stated goals."); Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir.2005) (explaining that the government "cannot meet its burden to prove least restrictive means unless it demonstrates that it has actually considered and rejected 752*752 the efficacy of less restrictive measures before adopting the challenged practice").
Perhaps most damaging to the defendants' position is the absence of any evidence that they seriously considered a further decrease in the amount of tobacco in the mixture as a less restrictive

strategy of quelling tobacco abuse. At trial, Moves Camp testified that the tobacco mixture used in Lakota religious ceremonies could contain as little as one-percent tobacco, and the inmates testified that Moves Camp's religious beliefs are consistent with their own. Thus, the district court correctly found that in assessing less restrictive means, "[i]t is not the amount of tobacco, but rather the fact that tobacco is present in the ceremonies, that is important."
At trial, Weber rejected the effectiveness of a further decrease in the amount of tobacco distributed to inmates, explaining that "whether it's 25 percent or 10 percent or 5 percent, it's still tobacco, and it's still a sought-after commodity." But if the SDDOC continued to decrease the proportion of tobacco in the mixture, there would be a point at which the amount of tobacco in the mixture would be so insignificant that it would be neither practical nor profitable to extract it. At this point, the defendants can achieve their interest in order and security while also accommodating the inmates' desire for the presence of tobacco during religious ceremonies. Simply put, the defendants have failed to meaningfully explain how decreasing the proportion of tobacco in the mixture to no more than one-percent — a measure that is less restrictive than an outright ban — would not be an effective means of curbing tobacco abuse and, as a result, achieving their interest in order and security.
Further, that other correctional facilities permit inmates to use tobacco for religious purposes supports the existence of less restrictive means of ensuring order and security in prisons. Fegans, 537 F.3d at 905 (explaining that "prison policies from other jurisdictions provide some evidence as to the feasibility of implementing a less restrictive means of achieving prison safety and security" (citation omitted) (internal quotation marks omitted)). Indeed, the district court cited extensive evidence demonstrating that numerous correctional facilities throughout the United States permit inmates to use tobacco for religious purposes subject to various limitations. It's true that what other prisons have done to accommodate inmates' religious tobacco use may deserve less weight here given South Dakota's higher percentage of Native American inmates compared to other states. See Fowler, 534 F.3d at 942 (noting that "as prisons differ, so may the means by which prison officials ensure order and stability"). Nevertheless, we agree with the district court's observation that "widespread allowance of tobacco in prison lends substantial credence to [the inmates'] position that less restrictive alternatives to a complete ban on the use of tobacco in Lakota religious ceremonies [are] possible."
We conclude that the record supports the district court's determination that the defendants have not satisfied their burden of showing that the tobacco ban "is the least restrictive means of furthering their compelling government interest." 42 U.S.C. § 2000cc-1(a)(2). Accordingly, we affirm the district court's conclusion that the defendants violated RLUIPA by banning inmates' use of tobacco for religious purposes.
III. The Remedial Order
After concluding that the defendants violated RLUIPA, the district court ordered the parties to meet, confer, and adopt a narrowly tailored tobacco policy. 753*753 When the parties failed to agree on a revised policy, each party submitted proposed policies to the district court. After reviewing these submissions, the district court issued a remedial order[9] enjoining the defendants from banning tobacco during Native American religious ceremonies. The order also required the SDDOC to amend its tobacco policy in various ways to ensure that inmates participating in Native American religious ceremonies are afforded the opportunity to use tobacco during ceremonies. On appeal, the defendants argue that the district court failed to narrowly tailor the remedial order in violation of the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626(a)(1)(A).

The PLRA "`limits remedies to those necessary to remedy the proven violation of federal rights.'" Tyler v. Murphy, 135 F.3d 594, 596 (8th Cir.1998) (quoting H.R.Rep. No. 104-21, at 24 n.2 (1995)). The PLRA provides:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
18 U.S.C. § 3626(a)(1)(A). This language requires that "[t]he scope of the remedy must be proportional to the scope of the violation, and the order must extend no 754*754 further than necessary to remedy the violation." Brown v. Plata, ___ U.S. ___, ___, 131 S.Ct. 1910, 1940, 179 L.Ed.2d 969 (2011). "Narrow tailoring requires a fit between the remedy's ends and the means chosen to accomplish those ends." Id. at ___, 131 S.Ct. at 1939 (citation omitted) (internal quotation marks omitted) (alteration omitted). In determining whether these requirements are met, the court must "give substantial weight to any adverse impact on public safety or the operation of a criminal justice system." 18 U.S.C. § 3626(a)(1)(A).
After a thorough review of the record and the arguments presented by the defendants, we conclude that the scope of the district court's remedial order extends no further than necessary to remedy the violation of inmates' rights under RLUIPA. See Plata, ___ U.S. at ___, 131 S.Ct. at 1940. In fashioning the remedial order, the district court carefully balanced the need to fairly accommodate inmates' exercise of their religion, taking into account the parties' proposed remedies, while giving due "weight to any adverse impact on public safety or the operation of a criminal justice system" that may result from a change in tobacco policy. See 18 U.S.C. § 3626(a)(1)(A). Accordingly, we conclude that the district court's remedial order does not violate the PLRA.[10]
IV. Conclusion
We affirm the district court's grant of injunctive relief in all respects, including its remedial order.
[1] The complaint named four additional inmates as plaintiffs, all of whom have been dismissed from this action upon release from custody or transfer to a correctional facility outside of South Dakota.
[2] The inmates initially filed suit against Douglas Weber, then Director of Prison Operations for the SDDOC, Timothy Reisch, then Secretary of the SDDOC, and Marty Jackley, the Attorney General of South Dakota, in their official capacities. Dennis Kaemingk has since replaced Reisch as Secretary of the SDDOC, and the district court dismissed Jackley as a defendant. Weber remains a defendant in this suit.
[3] The Honorable Karen E. Schreier, then Chief Judge, United States District Court for the District of South Dakota.
[4] Adult Corrections Facilities, South Dakota Department of Corrections, http://doc.sd.gov/adult/facilities/.
[5] Creek and Brings Plenty are members of two of the sixteen modern day tribes that comprise the Great Sioux Nation, which "is a confederacy of historically and culturally united tribes" that are divided by dialects into three separate divisions: the Dakota, the Nakota, and the Lakota. See Steven J. Gunn, Compacts, Confederacies, and Comity: Intertribal Enforcement of Tribal Court Orders, 34 N.M. L.Rev. 297, 325 & n. 18 (2004).
[6] Although we acknowledge that "Lakota religion" may not be the best characterization of the inmates' beliefs, we use that term in light of RLUIPA's focus on the "religious" exercise of inmates. See 42 U.S.C. § 2000cc-1(a).
[7] We summarize the relevant contrary testimony offered by the defendants during our discussion of the merits of the inmates' RLUIPA claim. See infra Part II.

[8] Because the defendants cannot show that they employed the least restrictive means of furthering their interest, see infra Part II(c), we may dispose of their evidentiary claim. The defendants argue that the district court abused its discretion by denying their request to introduce disciplinary reports of Native American inmates that NACT had banned from using tobacco due to rule violations. But the defendants concede that the reports are only relevant to the question of whether they banned tobacco in furtherance of a compelling government interest. Therefore, because the resolution of the defendants' RLUIPA claims does not turn on the compelling-interest prong, we need not address this evidentiary question.
[9] In its remedial order, the district court mandated the following policies and procedures to cure the RLUIPA violation:
1. Mixtures used during Native American ceremonies that include tobacco will not contain more than 1 percent tobacco by volume.
. . . .
2. Tobacco ties and prayer flags can contain mixtures that include tobacco. All tobacco ties and prayer flags used during ceremonies must be burned at the conclusion of the ceremonies.
. . . .
3. The mixtures used for tobacco ties and prayer flags must be ground, but the mixtures that are smoked in pipes do not need to be ground.
. . . .
4. The mixtures used during ceremonies will be provided by volunteers who are cleared by the [SDDOC]. The volunteers must be eligible for and receive a `pink tag' or some equivalent clearance level. Volunteers who violate the tobacco policy may be refused admission to any [SDDOC] facility and may be subject to prosecution.
. . . .
5. Mixtures provided by the approved volunteers must be brought into the facility in a sealed, clear plastic bag that is subject to search and marked for identification. Mixtures must be premixed to comply with the 1 percent tobacco by volume requirement.
. . . .
6. Each [SDDOC] facility will determine where ceremonies take place within the facility, including the locations where tobacco ties and prayer flags are made. The [SDDOC] may require certain activities that involve tobacco to take place under video surveillance. The video surveillance requirement does not apply to the sweat lodge ceremony.
. . . .
7. Inmates participating in the Native American religion can participate in the making of tobacco ties and prayer flags.
. . . .
8. The process for handling and distributing tobacco ties and prayer flags will revert back to the procedures used prior to the tobacco ban.
. . . .
9. An abuse of ceremonial tobacco by an inmate will result in a one-year suspension from any ceremony that includes tobacco.
(Order at 3-9) (footnote omitted). The district court also ordered that "[a]ll other procedures and processes should revert back to the manner in which they were done prior to the tobacco ban and consistent with this order." (Order at 9).

[10] In affirming the district court's remedial order, we in no way foreclose future modification and amendment of that order. The district court "must remain open to a showing or demonstration by either party that the injunction should be altered to ensure that the rights and interests of the parties are given all due and necessary protection." Plata, ___ U.S. at ___, 131 S.Ct. at 1946; see 18 U.S.C. § 3626(b)(4).

 
 Case 4:09-cv-04182-KES Document 1 Filed 12/09/09 Page 1 of 6 PageID #: 1

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

NATIVE AMERICAN COUNCIL OF

)

TRIBES; Blaine Brings Plenty, )

Shawn Garrnett, Nephi Antelope)

Brian Dubray, Bryan White Pipe)

Clayton Creek, David Deloria, )

and all other persons who are )

similarly situated,

)

)

PLAINTIFFS,

)

)

)

vs

)

)

DOUGLAS WEBER, Warden of

)

South Dakota state Prison,

)

TIMOTHY REISCH, Secretary of )

the Department of Corrections,)

MARTY JACKLEY, Attorney

)

General, et al,

)

)

DEFENDANTS.

)

CIV. NO. 09- 'fff;L
PLAINTIFF'S COMPLAINT UNDER 42 U.S.C. §2000cc1 (a) ( 1) - ( 2) FOR VIOLATION OF THE RIGHT TO FREE EXERCISE OF RELIGION

Plaintiffs, the Native American Council of Tribes, ("NACT or organization"), institute this civil rights suit pursuant to the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §2000cc-1(a) (1)-(2), seeking an injunction and judicial review of an adverse administrative decision, wherein Plaintiffs were not given a full, fair and adequate hearing, Fed.R.Civ.P.65(a) (2). The Plaintiffs never agreed for such decision to be made. Fed.R.Civ.P.56(c). With this, the Plaintiffs seek an immediate injunction asserting the following claims for relief: (1) violation of right to free exercise of religion; (2) violation of the American Indian Religious Freedom Act, 42 u.s.c. § 1999; (3) violation of equal protection; (4) violation of Federal trust responsibility; (5) violation of the right of freedom of religion under customary international law and the United Nations Charter; (6) violation of plaintiffs right to protection against

Case 4:09-cv-04182-KES Document 1 Filed 12/09/09 Page 2 of 6 PageID #: 2
genocide as provided in international law and in the Geneva convention; (7) violation of plaintiffs rights as a "self governing people" under Article 73 of the United Nations Charter. Manybeads v. United States, No 88 Civ. 0181, Slip.Op. at 51-54 (1988).
In addition to this complaint, the named defendants are prohibited and may not rely on mere denials or allegations of other similar situated complaints related to the present in its answer or pleadings. Id at 612-613 (quoting Fed.R.Civ.P.56(c)).
FACTUAL BACKGROUND Plaintiff (N.A.C.T.) is a federally recognized Indian organization with its headquarters at the South Dakota State Penitentiary (S.D.S.P.) in Sioux Falls, South Dakota. By virtue of its federally registered status, the Native American council of Tribes organization is entitled to affiliate with the nine (9) Sioux Indian Tribes in South Dakota and North Dakota, Montana, Nebraska and Minnesota, to plan, conduct, and administer spiritual programs or portions thereof under §501(c) (3) of the Indian Reorganization Act of 1934. See Washington v. Washington State Commercial
Passenger Fishing Vessel Ass•n, 443 u.s. 658 (1979).
N.A.C.T. instituted this suit pursuant to the R.L.U.I.P.A., seeking to reverse the predilection penal administration decision and to restore all spiritual ceremonial programs that are embodied in "tobacco", and offered within a ceremonial framework.
DISCUSSION Discrimination prohibited: No Native American prisoner shall be penalized or discriminated against solely on the basis of Native American religious beliefs or practices, (BOP) states that "no one may disparage the religious beliefs of an inmate." (Sec. 13) Federal regulations on the protection of incarcerated Native Americans' religious rights can serve, as the United Nations (U.N.) Report (PS 5360.07.Aug.25, 1997).

Case 4:09-cv-04182-KES Document 1 Filed 12/09/09 Page 3 of 6 PageID #: 3
STANDARD OF REVIEW Unlike the usual civil case in which the Plaintiffs bear the burden of proof by a preponderance of the evidence, the south Dakota State Penitentiary Administration places the burden on itself in not providing any full, fair or adequate hearing, or an opportunity to plaintiffs to establish, by clearly demonstrating the validity of the grounds for constitutional rights (or portion thereof). (O'Lone v. Shabazz, 482 u.s. 342, at 348 (1987}) (quoting 28 u.s.c. §2403(a)). Freedom of religion is one of the Federal Constitutional rights of prisoners ... discrimination is prohibited: No Native American prisoner shall be penalized or discriminated against solely on the basis of Native American religious beliefs or practices. The Fourteenth Amendment to the United States Constitution is the most important guarantee against infringement of civil liberties by the states. Its due process and equal protection clauses protect all "persons" and it is the South Dakota State Penitentiary Administration's violation of such constitutional rights that we address herein, although Indians clearly qualify on both counts, to rights and immunities clause protections. The penalogical administration has been reluctant to accord Indian Inmates those rights enjoyed under State law by non-Indians. These attitudes still linger. The United States supreme Court has made it clear that State discrimination against Indians because of their status is without support of law. White Mountain Apache Tribe v. Bracker, 448 u.s. 142 U.S. (1980}. This general principle suggests that judicial review of the Penalogical Administration decisions should be taken as discriminatory because the South Dakota state Penitentiary administration has not given Plaintiffs any hearings in the matter but arbitrarily took from them the most effec tive part of their ceremonies which is "tobacco" for prayer, and for prayer to be effective, it must be embodied in "tobacco" and offered within a ceremonial framework. See generally,

Case 4:09-cv-04182-KES Document 1 Filed 12/09/09 Page 4 of 6 PageID #: 4
Youngbear v. Thalacker, 17 F.Supp.2d 902 (N.D.Iowa 2001) (quoting swift v. Lewis, 901 F.2d 730 (9th cir. 1990).
The plain language of §2000cc-2(a) mandates the Plaintiffs defense .... against a party who violates Congressional enactments that protect incarcerated Native Americans' religious rights pursuant to 28 u.s.c. §2403(a), makes a showing sufficient to establish the existence of an element essential to Plaintiffs' case, 349 F.3d 257, 261 (CA6 2003). "In this situation, there is no genuine issue as to any material fact," because the Defendants' complete failure of proof concerning an essential elaborated element. Turner v. Safley, 482 u.s. 78, at 100 (1987)).
MOREOVER, because there was no hearing held or offered between the parties is a violation of the due process clause in the most basic sort, and Defendants' request for summary Judgment will not defeat an otherwise properly supported action for penalogical disregard for inmates' Constitutional rights. Turner, supra. Plaintiffs are entitled to judgment as a matter of law. Id. at 261 (quoting Fed.R.Civ.P.56(c)).
PROCEDURAL PROPRIETY OF THE DECLINATION The Prison Administration statutes, policies and regulations are unconstitutional in this case because any agency action taken without statutory authorization, or which frustrates the Congressional policy which underlies a statute, is invalid. Lemon v. Kurtzman, 403 u.s. 602 (1971). As to N.A.C.T. action, 403 u.s., at 612-613 for Constitutional rights violations. A preliminary injunction should be granted.
Respectfully submitted,
~~e~l~~ Blaine Brings Plenty, Chairman
Dated this 1s-/-day of :nece.mhar/Z,~009

Case 4:09-cv-04182-KES Document 1 Filed 12/09/09 Page 5 of 6 PageID #: 5
SOUTH DAKOTA DEPARTMENT OF CORRECTIONS
STATE PENITENTIARY
P.O. Box 5911 Sioux Falls, SD 57117-5911
Phone: (605) 367-5051 Fax: (605) 367-5038
10/19/09
Dear Tribal Liaisons, Spiritual Leaders, Pipe Carriers, and Sundancers,
In 2000, the South Dakota Department of Corrections became tobacco free with the only exception that tobacco may be used for Native American Ceremonies. Over the years, tobacco tie mixtures and pipe mixtures have increasingly been abused and this problem is directly impacting the Native American Ceremonies. Many inmates have been caught separating the tobacco from their tie and pipe mixtures. This tobacco is then sold or bartered to other inmates. Sometimes the prison gangs are pressuring the inmates to sell their tobacco instead of using it for spiritual reasons.
Many times the SDDOC has reached out to the elders of the NACT/LDN/LCT groups to help prevent the abuse of tobacco. The quantities of tobacco have been adjusted to prevent the separation. Inmates caught abusing tobacco are suspended for six months from purchasing tobacco tie and pipe ~ixtures. However, unfortunately the tobacco continues to be abused .
Medicine Men and Spiritual Leaders, who lead ceremonies at our facilities, have brought to our attention that tobacco is not traditional to the Lakota/Dakota ceremonies and that it is too addictive to be used for ceremonies. They have requested that tobacco be removed from Native American Ceremonies so that the participants of these ceremonies will focus on their spiritual paths and not abusing the tobacco.
Effective 10/19/09, the SDDOC will follow the advice of the respected Medicine Men and Spiritual Leaders and remove tobacco from Native American Ceremonies. All Native American ceremonies will continue with the use of other botanicals (cansasa, sage, bitter root, bearberry, lovage, flat cedar, sweet grass, etc).
Understanding the importance of all spiritual and religious ceremonies at our facilities, our goal is to work together to ensure that no religious or spiritual path is abused.
Sincerely,
~Ji-~ Douglas ~. Weber Director of Prison Operations

Case 4:09-cv-04182-KES Document 1 Filed 12/09/09 Page 6 of 6 PageID #: 6

 
 UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

NATIVE AMERICAN COUNCIL OF TRIBES, BLAINE BRINGS PLENTY, BRIAN DUBRAY, and CLAYTON CREEK,
Plaintiffs,
vs.
DOUGLAS WEBER, Warden of the South Dakota State Penitentiary, TIMOTHY REISCH, Secretary of the Department of Corrections, and MARTY JACKLEY, Attorney General,
Defendants.

)

Civ. 09-4182-KES

)

)

)

)

)

)

) ORDER GRANTING IN PART AND

) DENYING IN PART DEFENDANTS’

)

MOTION FOR SUMMARY

)

JUDGMENT

)

)

)

)

)

)

)

Plaintiffs, Native American Council of Tribes, Blaine Brings Plenty,

Brian Dubray, and Clayton Creek (collectively plaintiffs), brought suit

against defendants, Douglas Weber, Timothy Reisch, and Marty Jackley

(collectively defendants), alleging violations of the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, the First

Amendment, the Fourteenth Amendment, the American Indian Religious

Freedom Act, 42 U.S.C. § 1996, and various international laws. Defendants

move for summary judgment. Only Clayton Creek has filed a brief in

opposition to the summary judgment motion. Defendants’ motion for summary judgment is granted in part and denied in part.
STANDARD OF REVIEW Federal Rule of Civil Procedure 56(a) provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Only disputes over facts that might affect the outcome of the case will preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is inappropriate if a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court views the facts “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (internal citation omitted). The nonmoving party also receives “the benefit of all reasonable inferences to be drawn from the underlying facts” in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
2

BACKGROUND The pertinent facts to this order, in the light most favorable to plaintiffs, the nonmoving party, are as follows: Plaintiffs are Native American inmates at penal institutions managed by the South Dakota Department of Corrections (DOC). Plaintiffs use a mixture of tobacco (also known as cunli) and other botanicals, such as cansasa (the inner bark of the red twig dogwood), sage, bitter root, bearberry, lovage, flat cedar, sweet grass, etc., in religious ceremonies, such as pipe, tie, and flag ceremonies. Before November 19, 1992, defendants allowed smoking on land owned, leased, or occupied by the DOC. But on November 19, 1992, pursuant to Executive Order 92-10, defendants prohibited smoking on all land and buildings owned, leased, or occupied by the DOC. On December 17, 1998, Weber announced a new policy that banned tobacco for all DOC inmates. In 2000, the DOC and its facilities became completely tobacco free. Native American inmates who use tobacco for religious ceremonies were exempted from the no tobacco policies. Defendants allowed Native American inmates to continue using tobacco in the tobacco/botanical mixture, but inmates were prohibited from taking any tobacco out of the mixture. Some inmates who participated in the Native American religious
3

ceremonies abused the tobacco policy by separating the tobacco from the tobacco/botanical mixture and selling or bartering the tobacco within the general prison population. To address this misuse of tobacco, defendants decreased the proportion of tobacco in the tobacco/botanical mixture from 50 percent tobacco and 50 percent botanicals to 25 percent tobacco and 75 percent botanicals. Plaintiffs do not argue that the July 2005 change infringed on the exercise of their religious beliefs.
On September 17, 2009, Mary Montoya, a volunteer religious services organizer for the DOC, attended a meeting between Medicine Man Sidney Has No Horses from the Pine Ridge Indian Reservation and Native American inmates. Defendants allege that during the meeting, Has No Horses told the inmates that they should not use commercial tobacco in their pipes. The only documentation from this meeting are Montoya’s meeting notes. Docket 81-1 at 11-12.
On September 19, 2009, Has No Horses met with the pipe carriers during a powwow at the South Dakota State Penitentiary. Even though Montoya did not attend that meeting, she recorded varying accounts of what people told her transpired during the meeting. Inmate Leonard Blue Thunder told her that Has No Horses did not back down from his position that commercial tobacco should be removed from the pipes. Brings Plenty explained to her that Has No Horses told them that every inmate should
4

make his own choice about what he should smoke in his pipe. Alcohol counselor Willard Dathe told Montoya that the pipe carriers who left the meeting had angry body language. Montoya did not inquire with Has No Horses about what he told the inmates during the meeting. See Docket 81-1 at 12 (describing the September 19 meeting).
Montoya’s notes also state that “[o]ther medicine men have strongly suggested to the inmates that they quit using cunli,” but Has No Horses’s discussion “was the first time I heard a medicine man say he was removing it from the prisons.” Docket 81-1 at 12. According to Montoya’s own notes, however, she, not Has No Horses, removed the tobacco: “To honor Sidney’s request that cunli not be used in mixtures, Bud Johnston and I have removed it from the mixture we use for pipe ceremonies at the Minnehaha County Jail on Thursday mornings.” Docket 81-1 at 12. According to Montoya’s notes from October 1, 2009, at least one Native American inmate from the Yankton Sioux Tribe questioned the removal of tobacco from the pipe mixture. Docket 81-1 at 14.
A letter dated November 10, 2009, from Richard Two Dogs states that he supports “Mr. Roy Stone (Wakan Iyeska) of the Sicangu Nation in his decision to ban all commercial tobacco from all Lakota Ceremonies in the South Dakota penal system. Because of the devastating effects of commercial tobacco to the native american people I stand with Mr. Roy
5

Stone.” Docket 81-1 at 13. It is unclear from the record who Richard Two Dogs is and whether he is affiliated with the Native American religion.
Bud Johnston, president of a Native American church in Pipestone, Minnesota, assists Montoya in the pipe ceremonies led at the Minnehaha County Jail. Johnston also supports removing tobacco from the pipe mixture and using a red willow blend and that “[i]nmates who really know about their culture will have no problem with this and the others who just wanted a smoke will just go away.” Docket 81-1 at 15.
On October 19, 2009, Jennifer Wagner, the Penitentiary’s Cultural Activities Coordinator at the time, sent an email to DOC officials notifying them that tobacco would no longer be allowed in Native American religious ceremonies. She also instructed officials on how to handle complaints: “When inmates come to you to complain, please remind them that we are honoring the request of the respected Medicine Men and are going back to their traditional ways.” Docket 81-1 at 19. Attached to Wagner’s email was a letter from Weber, which stated that tobacco would be removed from the tobacco/botanical mixture to respect the wishes of the Medicine Men and Spiritual Leaders. Docket 81-1 at 20.
Plaintiffs protest defendants’ October 2009 policy and argue that the use of tobacco in their religious ceremonies is a long-standing religious
6

tradition. They seek injunctive relief to require defendants to allow them to use tobacco in their religious ceremonies.
DISCUSSION I. Religious Land Use and Institutionalized Persons Act
Plaintiffs allege that defendants violated their rights under RLUIPA. Section three of RLUIPA protects inmates’ religious exercises from undue government interference:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. §§ 2000cc-1(a)(1)-(2). Section three protects inmates’ religious exercises “when the substantial burden is imposed in a program or activity that receives Federal financial assistance.” 42 U.S.C. § 2000cc-1(b). The parties do not dispute that RLUIPA applies to DOC facilities and South Dakota state governmental officers. See also Sossamon v. Tex., 131 S. Ct. 1651, 1656 (2011) (reasoning that for purposes of § 3, “ ‘government’ includes, inter alia, States, counties, municipalities, their instrumentalities and officers, and person acting under color of state law.” (citing § 2000cc5(4)(A))).
7

“To make out a prima facie RLUIPA claim against a state official, an inmate ‘must show, as a threshold matter, that there is a substantial burden on his ability to exercise his religion.’ ” Van Wyhe v. Reisch, 581 F.3d 639, 654 (8th Cir. 2009) (quoting Singson v. Norris, 553 F.3d 660, 662 (8th Cir. 2009)). If the inmate meets this prima facie showing, “then the government bears the burden of persuasion on every other element of the claim.” Id. (citing § 2000cc-2(b)).
A. Substantial Burden on the Exercise of Religion The Eighth Circuit Court of Appeals has announced various ways for an inmate to make RLUIPA’s threshold showing: [T]o demonstrate a substantial burden on the exercise of religion, a government policy or action “must significantly inhibit or constrain [religious] conduct or [religious] expression . . . ; must meaningfully curtail a person’s ability to express adherence to his or her faith; or must deny a person reasonable opportunities to engage in those activities that are fundamental to a person’s religion.” Van Wyhe, 581 F.3d at 649 (alterations in original) (quoting Patel v. United States Bureau of Prisons, 515 F.3d 807, 813 n.7 (8th Cir. 2008)). RLUIPA defines “religious exercise” as “including the exercise of religion, whether or not compelled by, or central to, a system of religious belief.” § 2000cc-
8

5(7)(A); see also Gladson v. Iowa Dep’t of Corr., 551 F.3d 825, 832 (8th Cir. 2009) (same).1
An inmate must present some evidence to show that there is a
substantial burden on his ability to exercise his religion. Patel, 515 F.3d at
814 (reasoning that the inmate could not meet his threshold showing
because he offered only a “single, vague and unsupported statement” and
“the record offer[ed] no evidence” regarding the inmate’s claims). But
whether an inmate “can establish the truth or sincerity of [his] belief is a
matter to be decided at trial . . . .” Van Wyhe, 581 F.3d at 656. If an inmate
asserts beliefs or aspects of his faith that may be substantially burdened by
the prison’s regulations, a trial is usually warranted. See, e.g., Murphy, 372
F.3d at 988 (“Whether Murphy can establish the truth of [his] allegations
and the existence of a substantial burden on the exercise of his religion is a
matter to be determined by the district court in the first instance following a
trial on the merits on this issue.”).
1 Defendants, citing Murphy v. Missouri Department of Corrections, 372 F.3d 979 (8th Cir. 2004), argue that plaintiffs must show that defendants’ policy substantially burdens a central tenet of their religious beliefs. Docket 86 at 6 (citing Murphy, 372 F.3d at 988 (reasoning that “government policy or actions must significantly inhibit or constrain conduct or expression that manifests some central tenet of a [person’s] individual [religious] beliefs . . . .” (alterations in original) (citations omitted))). But the Eighth Circuit has abrogated the “central tenet” portion of the test and extended the test to “religious practices that are not ‘compelled by, or central to’ a certain belief system.” Van Wyhe, 581 F.3d at 649 (quoting Patel, 515 F.3d at 813 n.7).
9

The parties present two varying accounts of plaintiffs’ religious beliefs. Plaintiffs argue that tobacco has been “natural and central to their religious ceremonies since time immemorial . . . .” Docket 102 at 3. Plaintiffs argue that defendants, without consulting plaintiffs, took tobacco away from their religious ceremonies. Docket 102 at 6.
Defendants argue that tobacco is not a part of plaintiffs’ religious beliefs. According to Montoya’s notes, Medicine Man Has No Horses told inmates during a September 17, 2009, meeting at the Penitentiary that tobacco was not traditionally used in the pipe ceremonies. On September 19, 2009, Has No Horses met with the pipe carriers during a powwow at the Penitentiary and discussed the use of tobacco in religious ceremonies. But Montoya’s notes reflect varying accounts of what occurred during the September19 meeting, which she did not attend. Plaintiff Brings Plenty told Montoya that Has No Horses told the inmates that each man should decide for himself what to smoke in his pipe. Contrastingly, inmate Leonard Blue Thunder told Montoya that Has No Horses maintained his position that the inmates should not use tobacco in their pipe mixtures. See Docket 81-1 at 12 (describing the various stories relayed by third parties to Montoya about the September 19 meeting). There is no direct evidence from Has No Horses or from the inmates on what transpired at either meeting.
10

Defendants also offer a letter dated November 10, 2009, from Richard Two Dogs stating that he supports “Mr. Roy Stone (Wakan Iyeska) of the Sicangu Nation in his decision to ban all commercial tobacco from all Lakota Ceremonies in the South Dakota penal system.” Docket 81-1 at 13. It is unclear from the record who Richard Two Dogs is, whether he is affiliated with the Native American religion, and, if he is affiliated with the Native American religion, whether his personal beliefs can be compared to plaintiffs’ beliefs. Bud Johnston, who leads Native American religious ceremonies at the Jail, also supports removing tobacco from the pipe mixture. It is unclear whether Johnston also advocates for the removal of tobacco from the tie and flag ceremonies.
Defendants’ evidence, the majority of which is from prison officials and volunteers, does not conclusively establish that tobacco has never been a part of Native American religious ceremonies. Defendants’ evidence also does not indicate that the medicine men who allegedly told prison officials that tobacco is not traditional to the religious ceremonies represent plaintiffs’ individual religious traditions. Just because the medicine men and plaintiffs are Native American does not mean that plaintiffs and the medicine men hold identical religious beliefs. “Interfaith differences . . . are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences . . . .” Thomas v.
11

Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 715 (1981); cf. Frazee v. Ill Dep’t of Emp’t Sec., 489 U.S. 829, 834 (1989) (“[W]e reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.”). “[N]o ‘doctrinal justification’ is required to support the religious practice allegedly infringed.” Gladson, 551 F.3d at 833. An inmate’s beliefs need “not fit squarely with the orthodoxy” of an established religion to be entitled to protection. Love v. Reed, 216 F.3d 682, 689 (8th Cir. 2000) (citing Thomas, 450 U.S. at 71516).
While plaintiffs could have provided more analysis on the role of tobacco in their religious ceremonies, particularly the pipe, tie, and flag ceremonies, plaintiffs have alleged that tobacco is a natural and longstanding part of their religious exercise. Consequently, the truth and sincerity of plaintiffs’ religious exercise is at issue, and this issue should be determined by a jury. If the jury finds that plaintiffs’ asserted religious exercise involves the use of tobacco, then defendants’ October 2009 policy banning all tobacco from religious ceremonies could be a substantial burden on that religious exercise. Thus, summary judgment is denied on plaintiffs’ RLUIPA claim.
12

B. Least Restrictive Means Even if an inmate’s religious practice has been substantially burdened, summary judgment is still appropriate if the prison officials can establish that the policy at issue is “the least restrictive means to further a compelling interest.” Murphy, 372 F.3d at 988. The “compelling governmental interest” standard recognizes that “RLUIPA does not ‘elevate accommodation of religious observances over an institution’s need to maintain order and safety.’ ” Fegans v. Norris, 537 F.3d 897, 902 (8th Cir. 2008) (quoting Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)). In passing RLUIPA, Congress was “ ‘mindful of the urgency of discipline, order, safety, and security in penal institutions.’ ” Id. (quoting Cutter, 544 U.S. at 723). Even though Congress was mindful of an institution’s right to maintain safety, “ ‘[b]y enacting RLUIPA, Congress established a statutory free exercise claim encompassing a higher standard of review than that which applies to constitutional free exercise claims.’ ” Gladson, 551 F.3d at 832 (emphasis added) (quoting Murphy, 372 F.3d at 982). Because “Congress has granted additional protection for religious exercise by institutionalized persons,” Fegans, 537 F.3d at 902, the court applies a strict scrutiny test to an RLUPIA claim if the plaintiff can show that his religious exercise has been substantially burdened. Gladson, 551 F.3d at 833. Once the plaintiff’s threshold showing
13

has been met, the prison officials must show that its policy “was the least restrictive means to further a compelling interest.” Murphy, 372 F.3d at 988.
While the safety of a penal institution can be a compelling government interest, defendants “must do more than merely assert a security concern . . . they ‘must do more than offer conclusory statements and post hoc rationalizations for their conduct.’ ” Murphy, 372 F.3d at 988-89 (quoting Hamilton v. Schriro, 74 F.3d 1545, 1554 (8th Cir. 1996)). In Murphy, the prison officials prohibited inmates from holding group religious services for a religion that believed in white supremacy because the services would allegedly result in racial violence. Id. at 981-82. The district court granted summary judgment on the inmates’ RLUIPA claim and the appellate court reversed. Id. at 989. The Eighth Circuit reasoned that “to satisfy RLUIPA’s higher standard of review, prison authorities must provide some basis for their concern that racial violence will result from any accommodation” of the inmates’ request. Id. (emphasis added). While the court did “not require evidence that racial violence has in fact occurred in the form of a riot” the court did “require some evidence that [defendants’] decision was the least restrictive means necessary to preserve its security interest.” Id. (citing 42 U.S.C. § 2000cc-1(a)(2)); cf. Singson, 553 F.3d at 663 (reasoning that the prison officials could establish a compelling government interest because they produced expert testimony at trial that the prohibited religious conduct posed a security risk).
14

Here, defendants argue that Native American inmates who participated in the ceremonies before the policy change in October of 2009 abused the tobacco policy because they separated tobacco from the tobacco/botanical mixture and then sold or bartered it to other inmates. Prison gangs sometimes pressured Native American inmates to sell their tobacco. In 2009, 33 inmates who participated in Native American religious ceremonies violated the tobacco policy. DOC officials suspended these inmates from purchasing the tobacco/botanical mixture for six months. Defendants argue that “[g]iven that the tobacco supply for Native American ceremonies was a primary source for contraband tobacco within DOC facilities, there was a legitimate security and safety concern in closing down that source . . . . Consequently, DOC had a legitimate security concern when it enacted this ban.” Docket 82 at 9.
Defendants offer only conclusory, post hoc rationalizations to defend their alleged security concerns. Defendants have presented no evidence that there is any basis to their assertion that an occasional inmate’s possession of contraband tobacco creates a specific safety or security concern. Furthermore, it appears that at least one other penal institution, the Jefferson City Correctional Center in Jefferson City, Missouri, a state maximum security prison, allows Native American inmates to possess tobacco for religious purposes. See Fowler v. Crawford, 534 F.3d 931, 933 (8th Cir. 2008) (noting that the maximum security prison allowed Native American inmates to possess
15

a sacred bundle, which “consists of a prayer pipe, sage, cedar, sweetgrass,
tobacco, a medicine bag, and prayer feathers.”).
Moreover, the chain of events leading up to the October 2009 policy
change mitigates against defendants’ asserted compelling government interest.
Has No Horses approached the inmates to discuss removing tobacco from their
religious ceremonies because he believes that tobacco does not belong in the
ceremonies. There is no indication that defendants contacted Has No Horses or
the other medicine men to discuss security or safety concerns related to
plaintiffs’ using tobacco in their religious ceremonies. While cultural activities
coordinator Jennifer Wagner stated that tobacco violations have decreased
since the October 2009 policy was implemented, there is no indication in her
affidavit that security concerns motivated the change:
[A]fter . . . Has No Horses met with Warden Weber and recommended removing commercial tobacco from Native American ceremonies, myself and others initiated discussions with the Medicine Men and Spiritual Leaders . . . to confirm that the position within the Native American community outside of DOC facilities was that commercial tobacco should not be used in these ceremonies. . . . During those discussions and consultations it was brought to my attention, and to the attention of other DOC officials, that tobacco was not traditional to the Lakota/Dakota ceremonies. . . . Based upon the advise [sic] and recommendation of the Medicine Men and Spiritual Leaders . . . the tobacco ban at DOC facilities was extended, on October 19, 2009, to include all Native American ceremonies.
Docker 81-1 at 3-4 (emphasis added). When Wagner communicated the
October 2009 policy to prison officials, she again highlighted that the change
16

was meant to bring Native American inmates back to their religious traditions:
“When inmates come to you to complain, please remind them that we are
honoring the request of the respected medicine men and are going back to
their traditional ways.” Docket 81-1 at 18 (emphasis added).
In his letter justifying the October 2009 policy, Weber reiterated the basic
facts about the abuse of the tobacco policy and that prison officials and Native
American spiritual leaders have worked together in the past to address the
problems. Docket 81-1 at 20. But Weber also acknowledged that the medicine
men and spiritual leaders pushed for the October 2009 policy change on
religious, not safety or security, grounds:
Medicine Men and Spiritual Leaders, who lead ceremonies at our facilities, have brought to our attention that tobacco is not traditional to the Lakota/Dakota ceremonies and that it is too addictive to be used for ceremonies. They have requested that tobacco be removed from Native American Ceremonies so that the participants of these ceremonies will focus on their spiritual paths and not abusing the tobacco.
Effective 10/19/09, the SDDOC will follow the advice of the respected Medicine Men and Spiritual Leaders and remove tobacco from Native American Ceremonies.
. . .
Understanding the importance of all spiritual and religious ceremonies at our facilities, our goal is to work together to ensure that no religious or spiritual path is abused.
Docket 81-1 at 20 (emphasis added).
17

The record lacks any evidence that the October 2009 policy was motivated by defendants’ concern for the safety or security of DOC facilities due to plaintiffs’ abuse of the tobacco policy. Instead, as it appears from defendants’ evidence, defendants only instituted the policy change after Has No Horses and a few other medicine men voluntarily stated that tobacco is not a traditional part of Native American religious ceremonies. By following the advice of some medicine men and not consulting with plaintiffs on their individual religious beliefs, defendants have essentially defined plaintiffs’ religious beliefs for them. Because defendants offer no basis for an actual threat of safety or security, they have not advanced a compelling government interest.
C. Least Restrictive Means Even if the court assumes that defendants have offered a compelling government interest, defendants did not choose the least restrictive means to further that compelling government interest. Prison officials must seriously consider other alternatives before implementing their chosen policy. Murphy, 372 F.3d at 989. Similarly, the district court must explore any possible least restrictive means to further the government’s compelling interest. See id. (reversing the district court’s grant of summary judgment on an RLUIPA claim and reasoning that the court did not explore any other least restrictive means); Walker v. Iowa Dep’t of Corr., 298 Fed. App’x 535, 537 (8th Cir. 2008) (reversing
18

the district court because it failed to “address whether [the prison’s] denial of any daily kosher meal option is the least restrictive means to further a compelling interest.” (citing 42 U.S.C. § 2000cc-1(a))).
After inmates began abusing the tobacco policy, defendants decreased the amount of tobacco in the tobacco/botanical mixture from 50 percent tobacco and 50 percent botanicals to 25 percent tobacco and 75 percent botanicals. Defendants also suspended inmates who violated the tobacco ban from purchasing the tobacco mixture for six months.
Plaintiffs assert that many of the problems with inmates abusing the tobacco policy come from improper supervision by prison officials. Plaintiffs contend that Montoya, who is a volunteer and not a law enforcement officer, allowed inmates to take the tobacco out of their pipe and tie mixtures in her presence. They also allege that Montoya brought chewing tobacco for inmate Harold Running Bird and would leave her office door open to facilitate the theft of tobacco. Plaintiffs imply that tighter security measures or a different supervisor could decrease theft of tobacco by inmates. As another means to curtail abuse, plaintiffs suggest that inmates who violate the policy be placed into administrative segregation. Administrative segregation would be a harsher penalty than the six-month ban from buying the tobacco/botanical mixture that defendants implemented earlier.
19

Because defendants never engaged in discussions with plaintiffs about the abuse of the tobacco policy, defendants did not learn about plaintiffs’ proposed alternatives. Furthermore, other less restrictive means not addressed by plaintiffs could exist and should be explored by the parties and the court. Plaintiffs have provided plausible alternatives to outlawing tobacco and both of plaintiffs’ alternatives are less restrictive than the means implemented by defendants. Thus, summary judgment is denied on plaintiffs’ RLUIPA claim. II. First and Fourteenth Amendments
Plaintiffs also assert that defendants violated their rights under the free exercise clause of the First Amendment and their Fourteenth Amendment procedural and substantive due process and equal protection rights. Defendants argue that because plaintiffs’ RLUIPA claim fails, plaintiffs’ First and Fourteenth Amendment claims also fail. Docket 82 at 9-10 (“Under the well-established law of the Eighth Circuit, if a claim fails under RLUIPA, then any claims raised under the First Amendment or the Fourteenth Amendment similarly fail.”). Beyond this assertion, defendants offer no analysis on why summary judgment is appropriate on plaintiffs’ First and Fourteenth Amendment claims.
Defendants have the burden of proof to show that, as a matter of law, they are entitled to summary judgment. Celotex Corp., 477 U.S. at 322. Because defendants have offered no argument on why they are entitled to
20

summary judgment on plaintiffs’ First and Fourteenth Amendment claims, summary judgment is denied on plaintiffs’ First and Fourteenth Amendment claims. III. American Indian Religious Freedom Act
Plaintiffs allege that defendants’ October 2009 policy violates the American Indian Religious Freedom Act (AIRFA):
[I]t shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites. 42 U.S.C. § 1996. AIRFA, however, “is merely a statement of federal policy to protect Indians’ exercise of their religion . . . .” Lockhart v. Kenops, 927 F.2d 1028, 1036 (8th Cir. 1991) (citing Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988)). “Nowhere in [AIRFA] is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights.” Lyng, 485 U.S. at 455. Thus, AIRFA does not create a cause of action. Lockhart, 927 F.2d at 1036; see also Henderson v. Terhune, 379 F.3d 709, 715 (9th Cir. 2004) (reasoning that “AIRFA does not provide a means of legal recourse for any tribe or individual . . .”). Because AIRFA does not create a cause of action, summary judgment is granted on plaintiffs’ AIRFA claim.
21

IV. International Law Plaintiffs argue that defendants “have violated their right of freedom of
religion under customary international law and the United Nations Charter, their right to protection against genocide as provided under international law and the Geneva Convention, and their rights as a ‘self-governing people’ under Article 73 of the United Nations Charter.” Docket 71 at ¶ 32. Defendants respond that because South Dakota is a state and not a territory, it is not subject to the jurisdiction of the United Nations Charter.
Because plaintiffs did not state exactly which customary international laws have been violated, their argument that defendants violated customary international law is without merit. See, e.g., Hill v. Rincon Band of Luiseno Indians, No. 06-CV-2544, 2007 WL 2429327, at *4 (S.D. Cal. Aug. 22, 2007) (reasoning that the plaintiff’s vague claim of an international law violation could not succeed (citing Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997))). Similarly, plaintiffs’ claim that defendants violated the Geneva Convention by engaging in genocide completely lacks any factual basis in the complaint and, thus, is without merit.
Article 73 of the United Nations Charter is the United Nations’ declaration regarding non-self-governing territories:
Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these
22

territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:
(a) to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;
. . .
(c) to further international peace and security;
. . .
(e) to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply.
United Nations Charter art. 73.
Even assuming that Article 73 applies to this action, there is no
indication that Article 73 creates a cause of action under the circumstances of
this case. To create a cause of action, the treaty must by its “ ‘terms confer
rights upon individual citizens’ ” instead of calling “ ‘upon governments to take
certain actions.’ ” Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859
F.2d 929, 937 (D.C. Cir. 1988) (quoting Diggs v. Richardson, 555 F.2d 848, 851
(D.C. Cir. 1976)). “Treaty clauses must confer such rights in order for
23

individuals to assert a claim ‘arising under’ them.” Id. (citing U.S. Const. art. III, § 2 cl.1; 28 U.S.C. § 1331).
Courts have recognized that the United Nations Charter does not create judicially enforceable rights in the United States’ federal courts. See, e.g., Kyler v. Montezuma Cnty., 203 F.3d 835, tbl. op., No. 99-1052, 2000 WL 93996, at *2 (10th Cir. Jan. 28, 2000) (reasoning that the United Nations Charter does not confer rights upon individuals because the provisions relied on by the plaintiff “call upon governments to take certain action and are not addressed to the judicial branch of our government.” (citations omitted)); Comm. of U.S. Citizens, 859 F.2d at 936 (declining to entertain a private suit under the United Nations Charter absent congressional authorization for a legal claim under the treaty); Dickens v. Lewis, 750 F.2d 1251, 1254 (5th Cir. 1984) (reasoning that “individual plaintiffs do not have standing to raise any claims under the United Nations Charter . . . .” (citation omitted)); Nattah v. Bush, 770 F. Supp. 2d 193, 206 (D.D.C. 2011) (reasoning that the D.C. Circuit Court of Appeals “has rejected the proposition that the United Nations charter creates rights which private individuals may enforce in litigation against nation-signatories.” (citations omitted)); Ruiz v. Martinez, No. EP-07-CV-078-PRM, 2007 WL 1857185, at *7 (W.D. Tex. May 17, 2007) (“The UN Charter, while a treaty to which the United States is a party, governs an international organization’s operations; it does not create judicially enforceable rights.”); Hill, 2007 WL
24

2429327, at *4 (reasoning that the United Nations “Charter does not speak in terms of individual rights but rather speaks about obligations on nations. None of the purposes are intended to be judicially enforceable by individuals.” (citation omitted)).
Even though it appears that the Eighth Circuit has not addressed whether Article 73 would apply to the facts in this case, the court finds the holdings of the above-cited courts persuasive. Because Article 73 only calls upon governments to take certain actions related to non-self-governing peoples and does not confer a cause of action for allegedly aggrieved individuals, Article 73 does not create an independent cause of action enforceable in this court. Thus, summary judgment is granted to defendants on plaintiffs’ international law claims. V. Appointment of Counsel
In the past, plaintiffs have moved to appoint counsel. See Docket 92 (requesting counsel for Brings Plenty); Docket 100 (requesting counsel for NACT). The court denied the earlier motions because it found that plaintiffs could adequately represent their own interests. The court finds that plaintiffs are no longer able to adequately represent their interests in this action.
The court has the discretion to appoint counsel to represent indigent civil litigants. Rayes v. Johnson, 969 F.2d 700, 702 (8th Cir. 1992) (citing Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985)). In analyzing whether a plaintiff
25

needs an attorney, the court looks to several, non-exhaustive factors: the likelihood that the plaintiff and the court will benefit from assistance of counsel; the case’s factual complexity; the plaintiff’s ability to investigate the facts; the existence of conflicting testimony; and the complexity of the legal issues. Id. (citations omitted).
Plaintiffs have alleged non-frivolous claims because their RLUIPA, First Amendment, and Fourteenth Amendment claims survived defendants’ summary judgment motion. Plaintiffs’ claims are factually and legally complex. Plaintiffs may struggle to investigate the facts in this case, particularly defendants’ alleged security concerns. Moreover, conflicting testimony exists over the truth and sincerity of plaintiffs’ religious beliefs, which could be difficult for plaintiffs, who are not legally trained, to address at a trial. Given this case’s complexity, the parties and the court would benefit from the assistance of counsel.
CONCLUSION Summary judgment is denied on plaintiffs’ RLUIPA claim because genuine issues of material fact exist on whether defendants’ October 2009 policy substantially burdens plaintiffs’ religious exercise. Summary judgment is also denied on plaintiffs’ First and Fourteenth Amendment claims because defendants offer no argument as to why summary judgment is appropriate on those claims. Summary judgment is granted on the AIRFA claim because
26

AIRFA does not create an independent cause of action. Summary judgment is also granted on plaintiffs’ international law claims because the customary law claim is vague, the genocide claim lacks a factual basis, and the United Nations Charter claim does not create an individual cause of action. Accordingly, it is
ORDERED that defendants’ motion for summary judgment (Docket 80) is granted in part and denied in part.
IT IS FURTHER ORDERED that the court will appoint Pamela R. Bollweg, Sara E. Show, and Ronald A. Parsons, Jr., of Johnson, Heidepriem & Abdallah, to represent plaintiffs in this case.
Dated September 20, 2011. BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER CHIEF JUDGE
27

 
 UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

NATIVE AMERICAN COUNCIL OF )

TRIBES,

)

BLAINE BRINGS PLENTY, and

)

CLAYTON CREEK,

)

)

Plaintiffs,

)

)

vs.

)

)

DOUGLAS WEBER, Warden of the )

South Dakota State Penitentiary,

)

and DENNIS KAEMINGK, Secretary )

of the Department of Corrections,

)

)

Defendants.

)

CIV. 09-4182-KES
AMENDED MEMORANDUM OPINION
AND ORDER

Plaintiffs, Native American Council of Tribes (NACT), Blaine Brings

Plenty, and Clayton Creek, (collectively NACT or plaintiffs), brought suit against defendants, Douglas Weber and Dennis Kaemingk,1 alleging a violation of the

Religious Land Use and Institutionalized Persons Act (RLUIPA), the American

Indian Religious Freedom Act, the First and Fourteenth Amendments, and

international law. The court granted summary judgment on the American

Indian Religious Freedom Act and international law claims and denied

summary judgment on the RLUIPA and constitutional claims. Docket 109. The

court also appointed counsel to represent plaintiffs at trial.

1 Plaintiffs originally brought suit against Timothy Reisch, who was Secretary of the Department of Corrections when defendants banned tobacco. During the pendency of this action, Kaemingk replaced Reisch as Secretary.

Plaintiffs seek injunctive relief in order to use tobacco in their religious ceremonies that take place at penal institutions. A court trial was held on March 27-29, 2012. After trial, the court granted a motion made by the United States to file a statement of interest. Docket 181 (containing the statement of interest). Defendants responded to the statement of interest. Docket 185. The court has considered the statement of interest and defendants’ response along with the testimony, exhibits, and closing briefs2 in determining the outcome of this case.
FACTS The following constitutes the court’s findings of fact pursuant to Federal Rule of Civil Procedure 52(a)(1), which were found by a preponderance of the evidence: I. Background Facts The South Dakota Department of Corrections (DOC) operates various penal institutions in South Dakota, including the Penitentiary in Sioux Falls, the Jameson Annex in Sioux Falls, the Mike Durfee State Prison in Springfield, the minimum security unit in Rapid City, and the minimum security unit in Yankton. Douglas Weber is the director of prison operations for South Dakota.
2 In their brief, plaintiffs did not discuss their First and Fourteenth Amendment claims. Because plaintiffs failed to make any argument under the First or Fourteenth Amendment and because plaintiffs have succeeded on their RLUIPA claim, the court will only discuss the RLUIPA claim.
2

Tr. 526:5-11.3 During the relevant time period, Jennifer Wagner was the cultural activities director, and Mary Montoya was a volunteer in the religious and cultural activities program at the Penitentiary and Jameson Annex. Tr. 442:8-443:3.
Approximately 27 percent of the total state prison population in South Dakota is Native American, which is significantly higher than any other state’s Native American prison population. Tr. 232:25-233:8; 531:8-11. The majority of incarcerated Native Americans in South Dakota are affiliated with the Oglala band of the Lakota Sioux people. Tr. 232:10-13; Ex. 114. Brings Plenty and Creek are both members of the Lakota tribe.4 Tr. 69:20-21; 113:18-20.
NACT is a nonprofit organization dedicated to Native American issues at DOC facilities, primarily at the Penitentiary. Tr. 99:18-20. NACT oversees activities such as sweat lodge ceremonies, pipe ceremonies, and powwows, all of which occur within the various penal institutions. Tr. 99:21-25.
In 2000, the DOC banned all tobacco use except tobacco used in Native American religious ceremonies.5 Tr. 546:16-547:19. Until a policy change in
3 Unless otherwise noted, all “Tr.” citations are to the trial transcript, found at Docket 170, and “Ex.” citations are to the trial exhibits.
4 The Lakota, Dakota, and Nakota are Native American tribes in South Dakota. Tr. 232:20-24. The Lakota traditionally resided west of the Missouri River in South Dakota. Tr. 232:22. The Dakota resided east of the Missouri River. Tr. 232:22. The Nakota were in the Yankton area. Tr. 232:21-24.
5 Lakota’s use tobacco in various ways for religious purposes. They are discussed in detail below.
3

2003 or 2005, inmates were allowed to keep tobacco for their religious ceremonies in their cells. Tr. 243:3-10 (stating that the change occurred in 2005); Tr. 470:19-471:2 (stating that the change occurred in 2003). Following this change, tobacco was kept in locked boxes and was checked out by inmates prior to religious activities. Tr. 242:4-243:8. Inmates were also allowed to make tobacco ties with minimal supervision. Tr. 96:7-97:21 (tobacco ties are discussed below).
In October of 2004, the DOC arranged for a “medicine man conference” to address tobacco problems. Tr. 471:3-14. The DOC sent invitations to medicine men or traditional healers6 who had security approval to enter the facility. Tr. 471:3-14. Traditional healers John Around Him, Richard Two Dogs, and Charlie White Elk, tribal liaisons Jake and Myrna Thompson, Weber, and Wagner attended the conference. Tr. 243:11-244:13; 471:21-25. After the conference, mixtures used in Native American ceremonies were changed to 50 percent tobacco and 50 percent red willow bark. Tr. 244:21-24. In July of 2005, the DOC again changed the mixture to 25 percent tobacco and 75 percent red willow bark. Tr. 245:8-18; 472:1-9; Ex. 109; Ex. 133. The quantity of the mixture authorized to be distributed to inmates was also decreased from one-fourth cup to one-eighth cup. Tr. 472:10-12. Around the time that the
6 A traditional Native American healer is also known as a medicine man. Tr. 22:2. Because plaintiffs’ expert Richard Bernard Moves Camp testified that the Lakota use the term “traditional healer,” Tr. 22:2-3, the court will use “traditional healer” or “spiritual leader” instead of “medicine man.”
4

quantity of the mixture was reduced, the DOC also decided to grind the tobacco. Tr. 245:13-15; 474:13-25; Ex. 133. This mixture was used in all Native American religious activities that required tobacco. Ex. 133.
In 2009, NACT voluntarily imposed a disciplinary policy prohibiting inmates who were disciplined for abusing tobacco from purchasing the mixture containing tobacco for six months. Tr. 134:2-23. NACT’s bylaws state that a second infraction of the tobacco policy “will result in an indefinite ban, which may be lifted only by action of the NACT council when they are convinced [the inmate] will not misuse the mixture again.” Ex. 28; Ex. 29. In the summer of 2009, DOC took over enforcement of the six-month ban but not the indefinite ban. Tr. 249:2-21.
On October 19, 2009, the DOC enacted a policy banning all tobacco from DOC facilities, including tobacco for Native American religious ceremonies. Ex. 103. Because this was a policy change, the Secretary of the Department of Corrections had to approve the change, which he did. Tr. 580: 17-581:14. Plaintiffs allege that the total ban of tobacco violates their right to exercise their religion. II. Role of Tobacco in the Lakota Religion
As an initial matter, the Lakota religion is passed down in the oral tradition, with older generations instructing younger generations. Tr.195:10196:24. As noted by every traditional healer who testified, there are variances
5

of practice among individual tribes and traditional healers. Even Weber
acknowledged that “there are differing opinions out there from different
medicine men” regarding the use of tobacco. Tr. 577:21-22. Plaintiffs presented
the testimony of traditional Lakota healer Richard Bernard Moves Camp,7 and
Creek and Brings Plenty to establish plaintiffs’ religious beliefs regarding the
use of tobacco.
Moves Camp testified that it is difficult to explain what the Lakota
religion is because Lakota religion is the “Lakota cultural life,” a “holistic” life.
Tr. 23:1-8. Moves Camp described the development of Lakota spirituality in
7 Moves Camp was born on July 7, 1956, and is a member of the TetonOglala band of the Lakota, Dakota, and Nakota Nation. Tr. 21:8-22:7; Ex. 31. His western education includes a B.S. with a major in human services and a minor in police community relations from Oglala Lakota College. Tr. 21:21-24; Ex. 31. He is currently completing his master’s degree in human services. Tr. 21:21-24. He has worked as a social worker, case manager, school counselor, and substance abuse counselor, and he has consulted with various agencies for over 25 years. Tr. 22:16-19; Ex. 31. He is currently employed at the Crazy Horse School as a cultural advisor and wellness coordinator. Tr. 22:11-13; Ex. 31.
Moves Camp is a descendant of traditional healers from the Woputha/Chips-Moves Camp (Tiospaye) Family. Tr. 21:25-22:3; Ex. 31. He began his instruction of the Lakota religion and traditional healing when he was 14. Tr. 23:11-14. At age 16, Moves Camp became a traditional healer. Tr. 21:25-22:3.
Moves Camp has consulted with several penal institutions about the use of tobacco in Lakota religious ceremonies, including San Quentin, Folsom, Fort Leavenworth, and facilities in Wisconsin, Minnesota, and California. Tr. 26:1014. Moves Camp believes that those facilities allow inmates to use tobacco in religious ceremonies. Tr. 26:15-17. He also testified before Congress on behalf of Native American religious freedom. Tr. 50:1-10.
6

terms of three gifts given to the Lakota by the spirits, and he discussed what role tobacco played in such spirituality. Tr. 26:22-27:1.
The first ceremonial gift from the spirits to the Lakota was the inipi,8 or the sweat lodge. Tr. 26:24-25. The sweat lodge represents life and family and “is the anchor and the livelihood of a family to prayer.” Tr. 27:3-15. After completing the four stages of life (being in the womb, birth, living the experience, and elderhood), the Lakota believe that they return to the spirit world for their first sweat lodge. Tr. 27:16-19.
Sweat lodge ceremonies are usually conducted in four rounds, meaning that the lodge is heated four times with 15-28 rocks that have been heated until they are hot enough to provide steam. Tr. 41:1-5. No more than 12 people sit in a circle with one knee up and one knee down, which is an honorable way to sit. Tr. 41:5-8. During each round, four songs are sung and four prayers are said. Tr. 41:13-14. After each round, the door is opened and water, which is considered a medicine or a sacrament, is passed around. Tr. 41:13-15. During the four rounds, the participants smoke the pipe, which contains tobacco. Tr. 41:16-18. A sweat lodge ceremony is a purification ceremony or a rehabilitative process “to help your negativity, the negative energy you feel in your body.” Tr. 152:23-153:10.
8Throughout the trial, multiple witnesses used Lakota words in their testimony. The court notes the Lakota word in italics but will utilize the English word for simplicity.
7

The second gift was the Ta Awi Cha, or the sacrament of cunli, or tobacco, in the fire, as told in “The Changing Woman Story.” Tr. 27:20-25. The story concerns “how a deer woman became part of the Lakota, and they taught them how to respect and honor the life of the woman, and how we respect our mothers and how we take care of the fire and the tobacco.” Tr. 27:25-28:4. Lakota use the sacred tobacco as a sacrament and offering to the Creator. Tr. 28:4-6.
The third gift involves the sacred pipe. Tr. 28:7-8. According to oral history, there came a difficult time for the Lakota. Tr. 35:22-23. One day, two warriors were out hunting and scouting for buffalo when they came across a young woman, known as the Buffalo Calf Woman. Tr. 35:23-25. The woman was on a journey and carried a bundle with her. Tr. 35:25-36:1. She told the warriors that she was looking for a particular person, who happened to be their chief, Elk Head. Tr. 36:1-3. One of the warriors took the Buffalo Calf Woman to the chief. Tr. 36:4-6.
The Buffalo Calf Woman brought the cannupa, or pipe, to the people. Tr. 36:5-6; 148:15-22. She instructed the people that the pipe, which represents life, was to be used to pray in order to bring peace and harmony to the people. The pipe also represents life to the younger generations. Tr. 36:7-29:12.
The Buffalo Calf Woman also carried cansasa, or the inner bark of the red willow tree (also called red willow dogwood), sweetgrass, and a pipe tamper
8

(a small stick). Tr. 36:10-12. The Lakota believe that red willow is “a protectant, a God, a spirit.” Tr. 29:5-29:14. Sweetgrass is used to smudge9 the tobacco and
the red willow bark before the mixture is placed in the pipe. Tr. 63:18-19. The
Lakota smoke red willow bark and tobacco, a traditional pipe mixture. Tr. 63:18-25.10 Red willow bark is used in the mixture to “slow[] down the burning process of the tobacco,” while the tobacco is used as an offering. Tr. 81:7-12.11
In light of the second and third gifts, it is traditional for the Lakota to
smoke red willow bark with tobacco in a pipe. Tr: 63:20-64:7. Moves Camp
explained that tobacco is like the Old Testament “because tobacco has been
around for a long time.” Tr. 148:23-24. The pipe that the Buffalo Calf Woman brought is like the New Testament. Tr. 28:7-8. Smoking tobacco12 in the pipe
with the red willow bark represents a combination of the Old and New
Testaments. Tr. 64:9-10.
9 Smudging means that the smoke from the sweetgrass is waved over the tobacco and red willow bark.
10 At one point, Moves Camp testified that Buffalo Calf Woman instructed the Lakota to smoke only red willow bark. Tr. 68:23-25. But Moves Camp earlier testified that the Lakota smoke tobacco and red willow bark. Tr. 63:1825. Moves Camp smokes both tobacco and red willow bark. It appears that his later comment that the Buffalo Calf Woman instructed the Lakota to smoke only red willow bark was not a full recitation of Moves Camp’s beliefs.
11 Creek and Brings Plenty confirmed the Buffalo Calf Woman story as recited by Moves Camp. Tr. 85:8-12; 149:25-150:1.
12 There is no fixed formula for the mixture of tobacco and red willow bark that is smoked out of a pipe. Tr. 30:1-2. Using between 1 and 5 percent tobacco is acceptable. Tr. 29:19-30:7.
9

The Lakota also use tobacco to make canli pahta wicohan, or tobacco or prayer tie offerings.13 Tr. 31:1-2; 229:18-19. Each tobacco tie represents a prayer and is offered to a spirit. Tr. 31:2-6. After the prayer, the ties are burned in a fire. Tr. 31:2-6.
The Lakota combine the various sacraments during their ceremonies. For example, tobacco ties and prayer flags are burned as offerings in ceremonies such as the Lawampi (a thanksgiving ceremony in which tobacco is offered to the spirits), powwows, and the sundance. Tr. 84:7-21; 87:6-91:14; 105:21-106:12. The smoke from the offerings carries the prayers to the Creator. Tr. 91:7-14.
Tobacco ties and prayer flags are also used during sweat lodge ceremonies, which are often conducted at DOC facilities. Tr. 105:21-106:1. 52:14-21. Tobacco ties and prayer flags are hung inside the sweat lodge during the ceremony and are usually burned in the fire as an offering immediately after. Tr. 41:19-42:17.
In summary, tobacco “is a really important part of [Lakota] culture and ceremonies. Tobacco has been around the indigenous people for over a thousand years before the Europeans made contact with [Lakota] people.” Tr. 24:3-9. “The concept, the use of the sacred tobacco, [is] to use it as a sacrament and offering it to the Gods and to the [C]reator.” Tr. 27:20-28:6.
13 The Lakota also use prayer flags, which are larger tobacco ties, in their ceremonies. Tr. 39:23-40:1.
10

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.” Tr. 51:12-15. Tobacco is a center of Lakota life and is often given as a gift to an elder. Tr. 51:22-24. Moves Camp agreed that tobacco is fundamental to Lakota religion and it would be difficult for a Lakota to pray without it. Tr. 55:10-18.
A. Creek’s Religious Beliefs About Tobacco Creek was born on the Cheyenne River Sioux Reservation on June 11, 1965, and is an enrolled member of the Minnecojou Lakota. Tr. 69:17-23; 113:18-20. He has practiced the Lakota religion since he was a child. When he was five years old, Creek participated in a healing ceremony.14 Tr. 70:6-9. Creek would observe and help his mother, an aunt, or grandmother make tobacco ties about twice a week. Tr. 73:10-17. When his mother made the ties, she would pray for the family, the community, and all living things. Tr. 85:16-19. After she made the ties, Creek hung the ties in the middle of a plum tree near the creek. Tr. 85:19-24. After the ties hung in the tree a few days, Creek’s mother would take the ties down and burn them. Tr. 86:1-2. Creek’s family also used tobacco ties during sweat lodge ceremonies. Tr. 86:3-9.
14 A healing ceremony requires an altar that is constructed partly with tobacco and also requires making 405 tobacco ties which are used in the ceremony. Tr. 70:10-71:6. A healer also smokes tobacco in a pipe during the ceremony. Tr. 70:10-71:6.
11

Creek participated in the sweat lodge ceremony every week growing up,
and he has continued to participate in sweat lodge ceremonies while he has
been incarcerated. Tr. 73:1-9. As a child, Creek also participated in pipe ceremonies with his elders. Tr. 73:18-74:8. Creek is currently a pipe-carrier.15
Creek’s family used different pipe mixtures for different ceremonies. Tr.
82:18. They used 100 percent tobacco in their sweat lodge ceremonies and a
mixture of red willow bark and tobacco in their pipe ceremonies. Tr. 82:22-23.
Creek used only tobacco for tobacco ties and flags. Tr. 84:13-16. None of
Creek’s ancestors or traditional healers ever instructed him to smoke only red
willow bark. Tr. 109:21-24.
Creek admitted to violating the DOC’s rules regarding possession of
tobacco. Tr. 93:25-94:2. A June 13, 2006, disciplinary report stated that
officers found a plastic bag and a yellow envelope containing tobacco divided
up into small packages taped to the bottom of Creek’s bed. Tr. 135:8-136:15;
Ex. 121. A July 8, 2005, disciplinary report stated that after Creek was called
15 The role of a pipe-carrier is to tend to the sacred pipe, a duty which may be passed down from generation to generation. Tr. 43:12-13; Tr. 43:22-23. Being a pipe-carrier is a big responsibility because the pipe-carrier takes care of the pipes and the mixture to be smoked in the pipe; he should live a healthy life and remain drug and alcohol free. Tr. 42:21-43:4. “As a pipe carrier, you take on the burden to carry the world on your shoulders. In our culture, we say wotakuye oyasin. That means all my relations, everything that is living on this planet and beyond.” Tr. 74:10-14. A person must earn his way to become a pipe-carrier “through knowledge, learning what the significance of the pipe is, what the purpose of the pipe is, and your responsibility.” Tr. 75:18-21. Creek and Brings Plenty are both pipe-carriers (there are about five other pipecarriers at the Penitentiary). Tr. 75:22-78:23; 154:16-155:13.
12

out of the sweat lodge for a visitor, a correctional officer noticed that Creek’s bag of tobacco was open. Tr. 136:20-137:9; Ex. 122. Creek explained that another inmate did not have any tobacco mixture, so he opened his bag and allowed the other inmate to fill his pipe, which violated DOC rules. Tr. 136:20137:9; Ex. 122. An April 6, 2005, disciplinary report stated that an officer found a manila envelope with tobacco, rolling papers, and five rolled papers during a “shakedown” of Creek. Tr. 137:18-138:5; Ex. 124. A July 28, 2003, disciplinary report stated that an officer found tobacco in a sock in Creek’s cell during a “shakedown.” Tr. 139:12-18; Ex. 127. Creek testified that he received the prohibited tobacco from Caucasian inmates who brought the tobacco in through the visiting room. Tr. 94:5-8. There is no evidence that any of the tobacco involved in these violations came from sources associated with the Lakota religion.
Creek testified that “[t]obacco is essential to our belief. Tobacco is an offering. It’s one of the greatest offerings we can give to our Higher Power. He gives us life . . . In return, we offer . . . tobacco.” Tr. 86:22-87:1.
After the DOC banned tobacco, Creek continued to attend pipe and sweat lodge ceremonies. Tr. 144:12-17. He has smoked red willow bark instead of the mixture of red willow bark and tobacco. Tr. 144:18-21. Creek testified that his “whole essential belief system has been taken” away after DOC imposed the tobacco ban. Tr. 145:1-6.
13

B. Brings Plenty’s Religious Beliefs About Tobacco Brings Plenty was born on May 11, 1965, and he has practiced the Lakota religion since he was a child, when he helped his mother make tobacco ties. Tr. 150:7-12. His grandfather was an announcer for powwows and was a pipe-carrier. Tr. 150:13-18. For “[a]s far back as [he] can remember,” Brings Plenty has always used tobacco in his religious ceremonies such as in his pipe mixture and in tobacco ties. Tr. 153:14-154:7; 157:14-17 (“From my earliest memory growing up on the reservation, I have always seen tobacco used at Sundances, at [healing] ceremonies, at sweat lodge ceremonies. I have always seen it.”). Brings Plenty has participated in various Lakota religious rituals, particularly sweat lodge ceremonies, at the Penitentiary since he was incarcerated there in February of 1989. Tr. 150:24-151:8. Brings Plenty is a pipe-carrier and a fire-keeper16 at the Penitentiary. Tr. 154:1; 155:14-15. He also works with Montoya to guard the sweat lodge, and he addresses complaints about the sweat lodge with other Native American inmates. Tr. 156:12-19. Brings Plenty has two disciplinary reports for violating the tobacco policy. An April 25, 2008, report stated that an officer found rolling papers with a
16 A fire-keeper sets up the rocks in the fire pit that is inside the sweat lodge prior to the ceremony. Tr. 155:16-156:9. Before heating the rocks, Brings Plenty smudges the rocks with sage and, before the ban, put some of the tobacco mixture in the fire. Tr. 155:16-156:9.
14

trace of tobacco on them in Brings Plenty’s pocket during a strip search. Tr. 186:8-187:22; Ex. 116. A December 13, 2006, disciplinary report stated that Brings Plenty was found with two bags of tobacco and a screen during a “shakedown” after making tobacco ties. Tr. 188:2-20; Ex. 117.
When DOC implemented the tobacco ban, he felt that a part of him was being taken away; he was offended. Tr. 158:5-10. To Brings Plenty, tobacco is a central part of his beliefs. Tr. 158:11-12. Brings Plenty testified that prison can be a spiritual place of healing, and that he is “a changed person, because . . . like a lot of the young guys up there, I used to be a little crazy. Now I try to help them.” Tr. 201:24-202:20. Weber has acknowledged that Brings Plenty believes tobacco is important to his religion. Tr. 588:5-11. III. DOC’s Complete Ban of Tobacco
A. DOC’s Proffered Reasons for the Ban Wagner testified that defendants banned tobacco because of security reasons. Tr. 303:5-9. After being confronted with her affidavit in support of defendants’ summary judgment motion, in which she stated that defendants banned tobacco at the request of the traditional healers, Docket 81-1, Wagner testified that she “decided to follow the advice of the respected medicine men and spiritual leaders and remove tobacco from Native American ceremonies.” Tr. 304:3-7.
15

Weber similarly testified that the ban was motivated by security issues. Tr. 554:6-20. He said that before the ban, multiple problems arose at DOC facilities from contraband tobacco trafficking, including violence, assaults, and coercion. Tr. 547:20-550:10. Tobacco “could be used to pay off gambling debts. It could be used for gang activity. It could be used for sexual favors.” Tr. 235:57. During the time that DOC allowed Native Americans to use tobacco in religious ceremonies, Weber claimed that a black market for tobacco existed. Tr. 549:7-551:12. While Weber testified that some of the tobacco came from the mixture used in Native American religious ceremonies because there were “examples of tobacco confiscated that had been through the grind process,” he could not be certain of the source of tobacco in all instances. Tr. 549:7-551:12.
Breon Lake, a former inmate who testified on behalf of defendants, stated that he watched Native American inmates pick tobacco out of the red willow bark and tobacco mixture and that other inmates approached him to buy his pipe mixture. Tr. 337:16-338:2. If Lake were not going to smoke his pipe mixture, the inmates would pick out the tobacco. Tr. 337:23-338:2.
Brings Plenty, who has been incarcerated longer than Lake, has never witnessed two inmates fight over tobacco. Tr. 173:3-8. Creek, who has also been incarcerated longer than Lake, never saw anyone remove tobacco from the pipe mixture. Tr. 132:5-8. Creek recalled two times when some inmates whom he thought wanted tobacco attended either a sweat lodge or pipe ceremony to
16

receive tobacco. Tr. 132:19-133:1. But Creek was never threatened by other inmates to separate his tobacco and give it to them. Tr. 103:14-17. He was unaware of gang activity or violence that resulted from inmates attempting to get tobacco from Native American inmates. Tr. 103:18-24.
Even though defendants have asserted that they banned tobacco due to security concerns stemming from the tobacco black market, they allowed Native American inmates to be unsupervised when making tobacco ties. Tr. 458:15-460:11. The room where tobacco ties were made held up to 35 people, and other inmates besides pipe-carriers, sundancers, and fire-keepers were allowed to make tobacco ties. Tr. 457:25-458:8. In addition, inmates are not supervised at either sweat lodge or pipe ceremonies. Tr. 255:4-13. Inmates attending either ceremony simply check in with a correctional officer before they go to a ceremony. Tr. 255:4-13. Instead of direct supervision, the Penitentiary has a camera system in the chapel area, and one officer is stationed in the chapel area to supervise all activities in that area. Tr. 227:22228:5.
The DOC’s security reasons for banning tobacco, as presented through Weber’s and Wagner’s trial testimony, conflict with the contemporaneous documentation produced by the DOC regarding the ban. In a letter dated October 19, 2009, addressed to “Tribal Liaisons, Spiritual Leaders, Pipe Carriers, and Sundancers,” Weber conveyed that the DOC had banned all
17

tobacco. Tr. 557:25-558:19; Ex. 103. Weber relayed the security concerns of
inmates separating tobacco from their pipe and tie mixtures and reiterated that
he had reached out to NACT and other groups to prevent the abuse of tobacco.
Ex. 103.
The majority of Weber’s letter, however, concerned religious reasons for
banning tobacco:
Medicine Men and Spiritual Leaders, who lead ceremonies at our facilities, have brought to our attention that tobacco is not traditional to the Lakota/Dakota ceremonies and that it is too addictive to be used for ceremonies. They have requested that tobacco be removed from Native American Ceremonies so that the participants of these ceremonies will focus on their spiritual paths and not abusing the tobacco.
Effective 10/19/09, the SDDOC will follow the advice of the respected Medicine Men and Spiritual Leaders and remove tobacco from Native American Ceremonies. All Native American ceremonies will continue with the use of other botanicals (cansasa, sage, bitter root, bearberry, lovage, flat cedar, sweet grass, etc.).
Ex. 103. While Weber’s letter stated that spiritual leaders said that tobacco is
not traditional, he admitted at trial that some spiritual leaders, tribal liaisons,
and tribal leaders did not support his decision to ban tobacco. Tr. 558:7-19.
Indeed, Weber acknowledged that there are differing opinions from various
medicine men about Lakota spiritual beliefs. Tr. 576:19-22.
For example, John Yellow Bird Steele, president of the Oglala Sioux
Tribe, supports the inmates’ request to regain the right to use tobacco in their
religious ceremonies. Tr. 292:5-12. Wagner admitted that she later learned that
18

President Yellow Bird Steele supports inmates’ use of tobacco in their religious ceremonies because President Yellow Bird Steele wrote a letter to Wagner expressing those views. Tr. 292:5-24.17 Wagner has never spoken with President Yellow Bird Steele, even though he is president of the tribe to which a large portion of inmates belong, and she took no action after receiving his letter. Tr. 293:5-294:23. Wagner did not notify President Yellow Bird Steele prior to the ban about the DOC’s intention to ban all tobacco. Tr. 293:23294:9.
Additionally, Wagner’s email dated October 19, 2009, to various DOC officials, also listed religious, not security, reasons for banning tobacco: “[T]obacco is being removed from all Native American Ceremonies per the request of Medicine Men who lead ceremonies at our facilities. . . . When inmates come to you to complain, please remind them that we are honoring the request of the respected Medicine Men and are going back to their traditional ways.” Tr. 304:8-25; Ex. 108 (emphasis added).
Specifically regarding tobacco ties and prayer flags, Weber testified that he heard in the past that Native Americans have used botanical ingredients other than tobacco in the ties and flags. Tr. 578:6-17. But he could not list any Native American who told him that tobacco is not necessary in ties and flags, and he acknowledged that until the ban, he called prayer ties “tobacco ties.” Tr.
17 Exhibit 13, a letter dated March 13, 2012, from John Yellow Bird Steele, was refused as evidence. Tr. 292:16-293:3; Docket 168.
19

578:6-17. He further acknowledged that some Native Americans believe that tobacco ties, filled with tobacco, are an essential part of their religion. Tr. 579:15-18.
To support the DOC’s view that the “respected medicine men and spiritual leaders” supported removing all tobacco, implying tobacco is unnecessary in the practice of the Lakota religion, defendants rely on the 2004 spiritual conference, a 2009 meeting with Sidney Has No Horses, and other discussions with traditional leaders.
As stated above, DOC officials had a spiritual conference in 2004, during which the abuse of tobacco in DOC facilities was discussed. Tr. 552:25-554:5. Weber testified that the 2004 meeting was “absolutely . . . [o]ne of the considerations” in his decision to ban all tobacco. Tr. 554:1-5. But the conference was held in 2004, and the DOC did not ban tobacco until October of 2009. The DOC presented no evidence that the 2004 conference resulted in any determination that tobacco should be banned from Lakota religious ceremonies five years later.
1. Reliance on Has No Horses According to Montoya’s notes from a September 2009 meeting, inmates asked Has No Horses18 “to be their main medicine man.” Tr. 479:25-480:13.
18 Has No Horses, a descendant of holy men, is a Lakota holy man. Tr. 362:24-363:1. Both Has No Horses and Moves Camp are descendants of Horn Chips. Tr. 396:1-5.
20

Weber met with Has No Horses after the September 2009 spiritual conference. Tr. 554:25-555. Montoya asked Has No Horses to tell Weber what he told the inmates about using tobacco. Tr. 555:17-20. According to Weber, Has No Horses “without any prompting from me whatsoever” said “that he thought tobacco should not be allowed at the prison.” Tr. 555:21-23. Weber did not testify that he personally followed up with Has No Horses or any other Lakota spiritual leader about banning tobacco. Tr. 556:10-22.
In contrast, Has No Horses later told inmates that he told neither Weber nor Montoya that he thought all tobacco should be banned. Tr. 601:8-14. He clarified that he told Montoya and Weber that he uses red willow bark in his pipe and that “[e]ach pipe carrier here and each medicine man and Sundancer has a right to put what they want in their pipes.” Tr. 601:8-18.
Moreover, Has No Horses’s testimony did not support defendants’ assertion that he supported the tobacco ban. He testified that he told Montoya that “if you caught an individual selling cigarettes from these tobacco ties, they should be individually punished, not the whole populous.” Tr. 394:13-22. He clarified that when he used the word “ban” with DOC officials, he meant that tobacco violations should result in personalized tobacco bans, not that all tobacco should be banned. Tr. 395:6-14.
Has No Horses testified that tobacco plays an important role in how he practices his Lakota religion. When he performs his duties as a holy man,
21

people bring him tobacco as a gift. Tr. 365:10-18. Has No Horses also uses loose leaf tobacco in his tobacco ties and prayer flags. Tr. 376:9-381:24. According to Has No Horses, DOC officials “wanted to know what I used [in my prayer flags], so I told them, yes, I use no chemical, no addictive tobacco, such as American Spirit, Native Spirit, you know, those that don’t have any chemicals preferably.” Tr. 380:23-383:12.
Has No Horses uses only red willow bark in his pipe, but acknowledged that other tribes and healers may do things differently. Tr. 374:13-375:15. Due to the Lakota religion being driven underground during past time periods, different families have practiced the Lakota religion in different ways. Tr. 390:23-391:15. Traditional healers, even if they belong to the same tribe, may have divergent views on whether tobacco should be used in the pipe mixture. Tr. 391:19-22.
Weber and Montoya mischaracterized Has No Horses’s beliefs regarding the role of tobacco in Lakota religious ceremonies and whether he believed that DOC officials should ban the use of all tobacco. Thus, defendants’ reliance on Has No Horses’ statements does not support their contention that traditional healers encouraged them to ban tobacco.
2. Other Viewpoints Wagner also consulted some Native American religious leaders about the ban, including Charlie White Elk, Richard Two Dogs, Roy Stone, and Francis
22

Johnston, also known as Bud Johnston. Tr. 250:22-251:2; 299:6-300:3; 400:22-401:2.19
Wagner testified that she spoke with Roy Stone, a traditional healer and
an enrolled member of the Rosebud Sioux Tribe, about the use of tobacco in
Lakota religious ceremonies around September 25, 2009. Tr. 252:18-21. Stone,
however, testified that he only spoke to Montoya about banning tobacco.
Docket 153-2; Tr. 9:13-19. There is no indication that NACT has invited Stone
to lead religious ceremonies or that his religious beliefs reflect those of
plaintiffs. Docket 153-2; Tr. 8:24-9:2.
Stone never urged defendants to ban tobacco. Instead, Montoya spoke
with him about her belief that inmates should only be allowed to use red willow
bark in their ceremonies, and he agreed with her decision. Docket 153-2; Tr.
12:2-11. After that conversation, Montoya and Wagner wrote a statement for Stone to sign. Tr. 252:17-253:8; Ex. 137.20
19 Defendants also offered the testimony of Breon Lake, a former inmate and helper to Bud Johnston. Lake is Dakota, not Lakota. Tr. 330:12-332:7. He follows Johnston’s church and adheres to the Native American Church, which is a blend of Native American and Christian beliefs. Tr. 348:11-12. Lakota who practice the Lakota religion may not agree with the Native American Church’s belief system. Tr. 349:19-22. Because defendants did not rely on Lake’s belief system when they made their decision to ban tobacco and because his beliefs are very different from plaintiffs’ beliefs, his testimony is not included in the factual conclusions.
20 Stone did not write Exhibit 137, but instead signed his name to a statement that Montoya and Wagner wrote for him. Wagner testified that Stone was able to read the statement in English. Tr. 253:5-8. But Stone was unable to complete his deposition in English. An interpreter assisted Stone throughout
23

While Stone uses red willow bark (which he interchangeably called cansasa, kinnikinnick, and tobacco) in his pipe, he uses only tobacco in his tobacco ties and prayer flags. Docket 153-2; Tr. 5-11; 17:1-23:14. Stone further acknowledged that different people follow different spiritual leaders. Docket 153-2; Tr. 17:21-18:22.
Stone does not provide support for defendants’ assertion that he supported the tobacco ban. According to Stone, he never urged DOC officials to ban tobacco and, instead, agreed with Montoya’s belief that only red willow bark should be smoked. There was no indication that he supported removing tobacco from the prayer and flag ties. Moreover, there is no indication that Stone’s religious beliefs are similar to Creek’s and Brings Plenty’s beliefs. Thus, Stone’s testimony does not negate the aforementioned evidence that demonstrates the importance of tobacco in the Lakota religion.
At one time in her testimony, Wagner stated that she met with Richard Two Dogs21 regarding the proposed tobacco ban. Tr. 250:24-251:2. According to Two Dogs, commercial tobacco is not traditional to Native American religion. Docket 153-1; Tr. 12:23-12:5. Two Dogs testified that cansasa (not kinnikinnick, which is not a Lakota word) has been mixed with commercial
the deposition. When confronted with Exhibit 137, Stone stated that was the first time he had seen the paper. Docket 153-2; Tr. 12:12-24.
21 Two Dogs is an enrolled member of the Oglala Lakota Sioux and is a spiritual leader. Docket 153-1, Tr. 4:2-19.
24

tobacco in modern times, but he does not use such a mixture in his
ceremonies. Docket 153-1; Tr. 15:11-17:3. Two Dogs supports the DOC’s ban
on commercial tobacco because he believes that his people have had too many issues with lung cancer. Tr. 19:5-25; 29:25-30:13.22 While Two Dogs would
support the use of tobacco grown by Native Americans in Native American
religious ceremonies, the Lakota, Dakota, and Nakota do not grow tobacco. Tr.
25:22-26:1; 35:12-36:3.
Two Dogs represents only one view of traditional Lakota healers
regarding the use of tobacco. Tr. 27:17-18:7. He acknowledged that other
people use tobacco in tie and flag ceremonies and that such ceremonies are
important in the Lakota religion. Tr. 23:6-24:6; 27:5-10.
Defendants offered no concrete evidence that Creek or Brings Plenty
follow the Lakota beliefs as articulated by Two Dogs. Instead, Creek and Brings
Plenty testified that they have always used tobacco in their religious
ceremonies. Moreover, Two Dogs acknowledged that Moves Camp is a well-
22 During the trial, the court reserved ruling on whether to admit Exhibit 106, a letter dated November 10, 2009, from Two Dogs to “whom it may concern” at the DOC. Tr. 597:4-598:10. The letter “is in support of Mr. Roy Stone . . . in his decision to ban all commercial tobacco from all Lakota Ceremonies in the South Dakota penal system.” Ex. 106. The court sustained as hearsay NACT’s objections to portions of Two Dogs’s deposition regarding why he wrote the letter. Docket 165. The letter is an out-of-court statement offered for the truth of the matter asserted, namely that Two Dogs supports the DOC’s decision, and, thus, is hearsay. Fed. R. Evid. 801, 802. Even if the letter were admitted, it only states that Two Dogs supports Roy Stone’s decision to ban tobacco. It provides no analysis of tobacco’s role in the Lakota religion.
25

respected traditional healer and some Lakota use tobacco in their religious ceremonies. Given the intra-faith differences in the Lakota religion, Two Dogs’s testimony about his beliefs does not alter the court’s findings of fact as to Creek and Brings Plenty’s beliefs that tobacco is important to their religious exercise.
Weber also relied on a letter written by Bud Johnston supporting the ban in making his decision to ban tobacco even though Weber does not “know anything about Bud Johnston[.]” Tr. 588:17-589:6. Johnston is an enrolled member of the Bad River Band of Lake Superior Chippewa. Tr. 400:22-401:2. He is not Lakota. Tr. 431:15-18.
Johnston “pretty much” picked up his familiarity with pipe ceremonies as an adult. Tr. 406:13-19; 421:20-23. He did not grow up practicing his religion except during a few isolated religious encounters. Tr. 411:19-413:15. Johnston does not consider himself to be a medicine man or spiritual leader or advisor. Tr. 406:3-7.
Either Montoya or Wagner asked Johnston to write a letter supporting the DOC’s ban on tobacco.23 Tr. 417:3-418:17; 429:12-430:13; Ex. 6. In response to that request, Johnston wrote a letter dated September 29, 2009, addressed to Weber, stating that he supported the tobacco ban and “[i]nmates
23 Montoya could not recall whether she or Wagner asked Johnston to draft the letter. She stated that it was “possible” that Johnston sent her the email dated September 30, 2009. Tr. 513:21-512:8.
26

who really know about their culture will have no problem with this and the others who just want a smoke will just go away.” Ex. 107. He also stated that a few years ago, he and a couple of others had gone to lunch with DOC officials and stated that “[i]t was unanimous that we [Johnston, Lake, and Lake’s teacher Galen Drapeau, Sr.] thought the red willow blend . . . was the proper thing to use, commercial tobacco is not needed at all.” Ex. 107; Tr. 431:3-14. He acknowledged that he did not speak for the Lakota and he could not speak for them because he is not Lakota. Tr. 431:15-18.
When asked about his understanding of how the pipe became part of Native American spirituality, Johnston responded “I don’t have a real story about that. Our people were given the gift of the kinnikinnick, which is what we use. It’s the inner bark of the red willow mixed with bearberry and whatever you have in your area. Ours, a hummingbird brought that gift to the people.” Tr. 411:11-15. Moreover, Johnston’s “people don’t normally use prayer ties.” Tr. 415:25-416:2.
Johnston’s testimony regarding Lakota religious beliefs is not credible. Johnston is not a traditional Lakota healer; he is not even Lakota. He has not had the training that the other Lakota religious leaders, such as Moves Camp and Has No Horses, have received. His story about the origin of the pipe also differs because he believes that a hummingbird, not the Buffalo Calf Woman, brought the pipe to his people. His religious beliefs, including the lack of
27

tobacco ties and flags, and his use of kinnikinnick instead of red willow bark or tobacco, drastically differ from the Lakota religious beliefs outlined by Moves Camp, Has No Horses, Creek, and Brings Plenty.
Lastly, White Elk, who passed away in December of 2009, wrote a letter in which he stated that he supported discontinuing the use of tobacco in ceremonies. Tr. 251:7-252:13; Ex. 138. The court received the letter for the limited purpose of showing that the DOC took action based on White Elk’s letter. Tr. 251:7-252:13. White Elk’s letter does not state what role tobacco plays in the Lakota religion and, instead, relays his concerns about addiction to commercial tobacco. Ex. 138. Due to his passing, White Elk was unable to testify in this case. His exact beliefs about the role of tobacco in the Lakota religion are unknown, and the letter sheds no light on whether tobacco is essential to the Lakota religion.
After considering all the evidence, the court finds that tobacco is part of the exercise of the Lakota religion and the plaintiffs’ own views about tobacco’s role in their religion are sincere. The majority of DOC’s evidence demonstrated that the tobacco ban was implemented because of the DOC’s incorrect belief that the Lakota religion does not necessitate tobacco for its practice.
B. Impact of the Ban Weber gave conflicting testimony on whether contraband tobacco is still a problem at DOC facilities. He stated that he did not “know of any cases
28

today” of tobacco entering DOC facilities. Tr. 591:9-12. But he then stated that the DOC combats trafficked tobacco on a daily basis. Tr. 591:9-12. Weber also did not “dispute that contraband tobacco is in great demand. It has high value, and inmates still pursue it.” Tr. 591:21-22. Wagner acknowledged that tobacco was entering DOC facilities illegally, including tobacco entering the facilities through visitors, employees, volunteers, and other inmates. Tr. 306:21-307:15. Defendants offered no evidence of how many tobacco-related offenses occurred before and after the ban. Tr. 592:6-24.
The number of people attending sweat lodge ceremonies has remained consistent, but the number of inmates attending the pipe and tie ceremonies has decreased after the ban. Tr. 481:8-17. Before the ban, 34 people a week participated in making tobacco ties and there was a 4-week waiting period to get on the list. Tr. 259:18-260:3; Ex. 141. After the ban, 13 people a week participated in making tobacco ties, and there was no waiting period. Ex. 141. Before the ban, 25 inmates participated in pipe ceremonies, while only 13 participated in pipe ceremonies after the ban. Ex. 141.
Separately, all of the DOC officials who testified stated that religious activities are very important to life at the facilities and can help inmates in the rehabilitation process. Montoya testified that religious activities can be very helpful for the inmates, because “embracing their culture helps them grow in an environment that might otherwise swallow their souls[,]” and religious and
29

cultural activities can “make[] a big difference in their lives.” Tr. 519:1-23. Weber acknowledged that religion is “essential,” and he believes that he could not “do [his] job very well at all without the religious basis and the ability for inmates to practice their religion and learn from their religious leaders and become better people as a result of that.” Tr. 531:12-19.
C. Tobacco Policies at Other Institutions Wagner researched other institutions’ policies regarding the use of tobacco in Native American religious ceremonies. Tr. 237:2-22. Prison facilities in Nebraska and North Dakota are tobacco free. Tr. 237:10-22. Minnesota allows tobacco only if a Native American volunteer (who is able to show his or her tribal enrollment papers) brings the tobacco into the facility. Tr. 237:13-20. Wagner only researched these three states.24 During trial, however, Wagner admitted that other maximum security prisons allow Native American inmates to use tobacco in their religious ceremonies. Tr. 287:22-25. Additionally, Moves Camp testified that he had previously consulted with several penal institutions about the use of tobacco in Lakota religious ceremonies, including San Quentin, Folsom, Fort Leavenworth, and facilities in Wisconsin, Minnesota, and California. Tr. 26:10-14. Moves Camp believes that those facilities allow inmates to use tobacco in religious ceremonies. Tr. 26:1517.
24 Iowa apparently still allows tobacco in its facilities. 30

LEGAL CONCLUSIONS
Plaintiffs allege that defendants violated their rights under RLUIPA:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a)(1)-(2). RLUIPA “prohibits substantial burdens on
religious exercise, without regard to discriminatory intent.” Van Wyhe v. Reisch, 581 F.3d 639, 654 (8th Cir. 2009).25
RLUIPA protects inmates’ religious exercises when a “substantial burden
is imposed in a program or activity that receives Federal financial assistance.”
42 U.S.C. § 2000cc-1(b). The parties do not dispute that RLUIPA applies to
DOC facilities and South Dakota state governmental officers. See also
Sossamon v. Texas, 131 S. Ct. 1651, 1656 (2011) (reasoning that for purposes
of RLUIPA, “ ‘government’ includes, inter alia, States, counties, municipalities,
25 At one point in its statement of interest, the United States asserts that “[t]he only appropriate avenue for judicial inquiry is whether an institution’s policy interferes with an exercise of religion.” Docket 181 at 8. Defendants contend that this standard is “far too narrow, not supported by authority, and not the standard stated by the Eighth Circuit[.]” Docket 185 at 2. “Interferes with” is too narrow because RLUIPA uses the “substantial burden” test. 42 U.S.C. § 2000cc-1(b).
31

their instrumentalities and officers, and persons acting under color of state law.” (citing § 2000cc-5(4)(A))).
“ ‘By enacting RLUIPA, Congress established a statutory free exercise claim encompassing a higher standard of review than that which applies to constitutional free exercise claims.’ ” Gladson v. Iowa Dep’t of Corrections, 551 F.3d 825, 832 (8th Cir. 2009) (quoting Murphy v. Mo. Dep’t of Corrections, 372 F.3d 979, 987 (8th Cir. 2004) (Murphy I)); see also Van Wyhe v. Reisch, 581 F.3d 639, 649 (8th Cir. 2009) (reasoning that RLUIPA “explicitly provides for a cause of action to enforce the heightened free exercise right it creates.” (citing 42 U.S.C. § 2000cc-2(b))). “To make out a prima facie RLUIPA claim against a state official, an inmate ‘must show, as a threshold matter, that there is a substantial burden on his ability to exercise his religion.’ ” Van Wyhe, 581 F.3d at 654 (quoting Singson v. Norris, 553 F.3d 660, 662 (8th Cir. 2009)). If the inmate meets this prima facie showing, “then the government bears the burden of persuasion on every other element of the claim.” Id. (citing § 2000cc-2(b)). I. Substantial Burden on the Exercise of Religion
RLUIPA defines “religious exercise” as “including the exercise of religion, whether or not compelled by, or central to, a system of religious belief.” § 2000cc-5(7)(A); see also Gladson, 551 F.3d at 832 (same). The Eighth Circuit Court of Appeals has announced various ways for an inmate to make RLUIPA’s threshold showing:
32

[T]o demonstrate a substantial burden on the exercise of religion, a government policy or action “must significantly inhibit or constrain [religious] conduct or [religious] expression . . . ; must meaningfully curtail a person’s ability to express adherence to his or her faith; or must deny a person reasonable opportunities to engage in those activities that are fundamental to a person’s religion.” Van Wyhe, 581 F.3d at 649 (alterations in original) (quoting Patel v. United States Bureau of Prisons, 515 F.3d 807, 813 n.7 (8th Cir. 2008)). While a prison “must permit a reasonable opportunity for an inmate to engage in religious activities[,]” it “need not provide unlimited activities.” Id. at 657. Plaintiffs must present evidence to show that defendants have substantially burdened their ability to exercise their religion. See, e.g., Patel, 515 F.3d at 814 (reasoning that the inmate could not meet this threshold showing because he offered only a “single, vague and unsupported statement” and “the record offer[ed] no evidence” regarding the inmate’s claims). “Although RLUIPA bars inquiry into whether a particular belief or practice is ‘central’ to a prisoner’s religion, the Act does not preclude inquiry into the sincerity of a prisoner’s professed religiosity.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (citations omitted). “ ‘[T]he truth of a belief is not open to question;’ rather, the question is whether the objector’s beliefs are ‘truly held.’ ” Gladson, 551 F.3d at 833 (quoting Gillette v. United States, 401 U.S. 437, 457 (1971)). Congress has instructed the court to broadly construe RLUIPA to protect
33

“religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g).
A. Nature of the Religious Beliefs Creek and Brings Plenty, both Lakota, testified that tobacco has always been an essential part of their religious beliefs. Creek’s religious practices before he was incarcerated involved tobacco. For example, tobacco was used by the traditional healer in the Yuwipi, or healing, ceremony, which he attended when he was five years old. As a child, Creek watched his elders fill the pipe with loose-leaf tobacco and smoke the pipe during ceremonies. At the age of 16, Creek became a pipe-carrier. In 2003, while he was incarcerated, Creek again became a pipe-carrier. Creek continues to be a pipe-carrier. Creek’s family also made tobacco ties and would hang the ties in the middle of a plum tree. The tobacco ties also hung during the sweat lodge ceremony, and, after the ceremony, they were burned as an offering. Similarly, Creek’s family used tobacco to make prayer flags to give offerings to the four directions. The flags hung in the sweat lodge, and after the ceremony they were burned as an offering. According to Creek, “[t]obacco is essential to our belief. Tobacco is an offering. It’s one of the greatest offerings we can give to our Higher Power. He gives us life, and he gives us what we have today. In return, we offer—we can offer tobacco.” Tr. 86:22-87:1. According to Creek, “[t]obacco, the fundamental
34

part about it is the offering that we make, the sacrament that we give. As Lakotas, we believe we should always give rather than receive.” Tr. 111:19-21.
Brings Plenty similarly testified that “[a]s far back as [he] can remember,” he has used tobacco in religious ceremonies. Tr. 153-154. From his earliest memory of growing up on the reservation, he remembers seeing tobacco used at sundances, healing ceremonies, and sweat lodge ceremonies. He used tobacco in religious ceremonies as a child, including helping his mother make tobacco ties. Brings Plenty was taught that tobacco is used in the pipe, and the spirits take the smoke up to the Creator.
Brings Plenty is heavily involved with Native American religious ceremonies at the Penitentiary, where he is a pipe-carrier and fire-keeper. He prepares the sweat lodge ceremonies and attends almost every ceremony. Brings Plenty testified that tobacco is a central tenet of his Lakota beliefs, and he felt that a part of him had been taken away when the DOC banned all tobacco. Brings Plenty testified that prison can be a place of spiritual healing, and he is a changed person as a result of his involvement in Lakota religious ceremonies at the Penitentiary. Tobacco has played a role in this spiritual healing.
Moves Camp, a traditional Lakota healer and descendant of traditional healers, explained the importance of tobacco in the Lakota religion. In the second gift given to the Lakota, the Lakota received tobacco, which is similar to
35

the Old Testament in Lakota religious beliefs. The Lakota received the third gift when the Buffalo Calf Woman brought the pipe and red willow bark. The pipe represents a sort of New Testament. The Lakota smoke a mixture of red willow bark and tobacco in a pipe to represent the Old and New Testaments. Creek and Brings Plenty agreed that Moves Camp’s testimony was similar to their religious beliefs.
According to Moves Camp, banning all tobacco has stripped plaintiffs of their ability to pray in the way in which plaintiffs are accustomed. He stated that the ban has substantially interfered with the proper expression of their religious beliefs.
In their post-trial brief, defendants concede that “[i]t is undisputed that Native American spiritual leaders disagree whether it is essential to use tobacco in the ceremonial pipe or in tobacco ties.” Docket 176 at 4-6. Weber testified that “there are differing opinions out there from different medicine men” regarding the role of tobacco in Lakota religion. Tr. 577:21-22. Moreover, Weber testified that he knows that Brings Plenty believes that tobacco is an important and fundamental part of his religious beliefs. Tr. 588:5-11 (Weber has never spoken with Creek about his religious beliefs).
Defendants, however, contend that because some Lakota use red willow bark while others use a blend of red willow bark and tobacco, “Plaintiffs are not denied a meaningful opportunity to practice Lakota spirituality” because they
36

are allowed to use red willow bark in their pipe, tobacco tie, and prayer flag mixtures. Docket 176 at 21. Even if defendants are correct that red willow bark provides a way to practice Lakota spirituality, this is not the proper inquiry under RLUIPA. RLUIPA forbids the court from examining whether a professed religious belief is a central tenet to the religion. See 42 U.S.C. § 2000cc-5(7)(A) (defining “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of belief”) (emphasis added); see also Van Wyhe, 581 F.3d at 656 (reasoning that RLUIPA bars “inquiry into whether a particular belief or practice is central to a prisoner’s religion”) (citation omitted).
The fact that some Lakota use a blend of red willow bark and tobacco or only red willow bark is irrelevant because a religious practice does not need to be a universal practice for adherents of a particular faith. “Interfaith differences . . . are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences[.]” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717 (1981) (finding that even under the less protective First Amendment free exercise doctrine, “it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow workers more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.”). “[N]o ‘doctrinal justification’ is required to support the religious practice allegedly infringed.” Gladson, 551 F.3d at 833. An inmate’s beliefs need “not fit squarely
37

with the orthodoxy” of an established religion to be entitled to protection. Love v. Reed, 216 F.3d 682, 689 (8th Cir. 2000) (citing Thomas, 450 U.S. at 715-16).
Interfaith differences in the Lakota religion are especially common due to the Lakota religion’s oral tradition. All of the traditional healers testified, and defendants agree, that there are interfaith differences in the Lakota religion. Additionally, if RLUIPA forbids the court from examining whether a professed religious belief is a central tenet to the religion, 42 U.S.C. § 2000cc-5(7)(A), it certainly prohibits defendants from dictating that plaintiffs will use red willow bark in their religious ceremonies when plaintiffs have testified that tobacco is an essential and fundamental part of practicing their Lakota religion.
Defendants also dispute the sincerity of plaintiffs’ beliefs. Defendants argue that because plaintiffs have disciplinary records for tobacco violations and have attended services at the Native American church or Christian services, there is a factual basis for the court to conclude that plaintiffs’ religious beliefs are not sincerely held. Sincerity of religious beliefs is a question of fact for the court. Gladson, 551 F.3d at 835.
Creek has been incarcerated since 1990 and has had 4 tobacco violations, including one violation when he opened up his tobacco and red willow bark mixture to allow another Native American inmate to fill his pipe. Creek testified that the tobacco in the violations came from other sources, not from the tobacco used in religious ceremonies. Brings Plenty has been
38

incarcerated since 1988 and has had 2 tobacco violations. The fact that Creek and Brings Plenty have had a combined number of 6 tobacco violations in a combined number of 55 years of incarceration does not mean that they do not sincerely hold their religious beliefs, especially because defendants have offered no evidence to dispute plaintiffs’ testimony that the tobacco involved in those violations did not come from their religious ceremonies.26
After a discussion with Montoya, Brings Plenty attended Native American Church meetings to police the use of lighters. Creek attended one service at the Native American Church after another inmate invited him to go. Neither Creek nor Brings Plenty adhere to the Native American Church’s tenets. The fact that Creek and Brings Plenty have explored other avenues of faith does not mean that they do not sincerely hold their religious beliefs. Under defendants’ theory, if an inmate attended one service at another place of faith, he would be unable to assert that he sincerely holds his religious beliefs. Defendants would effectively prohibit inmates from exploring other faiths, even though Congress clearly indicated its intent that inmates should be encouraged to practice their religion (and thereby grow in faith) by passing RLUIPA. Defendants cite no precedent in support of this argument, and the court finds this argument
26 While Brings Plenty was once caught with a screen and tobacco, Ex. 117, this presents only circumstantial evidence that one time Brings Plenty may have used a screen to separate tobacco from the mixture used in religious ceremonies. One tobacco violation involving tobacco from Native American ceremonies does not mean that Brings Plenty does not sincerely hold his religious beliefs.
39

unpersuasive. Plaintiffs have shown that the use of tobacco in the pipe, tobacco ties, and prayer flags is religious exercise protected by RLUIPA.
B. Substantial Burden Plaintiffs must also show that the tobacco ban was a substantial burden on the exercise of their religious beliefs. Patel, 515 F.3d at 814; 42 U.S.C. § 2000cc-2(b). Because tobacco is an essential and fundamental part of plaintiffs’ religious exercise, a total ban on tobacco is “a substantial burden on the religious exercise of a person residing in or confined to an institution[.]” 42 U.S.C. § 2000cc(a). Defendants contend that the Eighth Circuit has upheld a prison’s decision to limit tobacco to Native American inmates in Runningbird v. Weber, 198 Fed. App’x 576 (8th Cir. 2006). In Runningbird, a Native American inmate brought a § 1983 claim against prison officials for “restrictions which were placed on the tobacco and sweat-lodge ceremonies in the penitentiary,” and the Eighth Circuit found in favor of the defendants. Id. at 577. Runningbird, however, involved limits on tobacco, not a ban on tobacco. Thus, it does not support defendants’ assertion that they have not substantially burdened plaintiffs’ religious exercise by banning all tobacco.27
27 Defendants also rely on Farrow v. Stanley, No. 02-567, 2005 WL 2671541 (D.N.H. Oct. 20, 2005) for the proposition that “a New Hampshire district court held that allowing [kinnikinnick], a tobacco alternative, does not substantially burden the religious exercise of a practicing member of the Lakota Sioux Nation.” Docket 176 at 19. But that facility’s policy did “not prohibit inmates from using [kinnikinnick] with some tobacco in it.” Farrow,
40

Defendants further argue that “[w]hen the evidence supports the use of 99% cansasa and 1% tobacco, the Court can reasonably conclude that the burden is not substantial.” Docket 176 at 21-22. But the amount of tobacco present in the tobacco and red willow bark mixture is not at issue in this case. Plaintiffs do not contend that they require a certain amount of tobacco in order to practice their religion. Small amounts of tobacco are frequently utilized as offerings in the Lakota religion. For example, a pinch of tobacco is often thrown into the fire at the beginning of a ceremony.
Throughout the years, the DOC has decreased the amount of tobacco in the tobacco and red willow bark mixture and decreased the amount of mixture that plaintiffs may use during their ceremonies. Plaintiffs accepted these policy changes. Plaintiffs testified that Moves Camp correctly summarized their religious beliefs, and Moves Camp testified that the tobacco could be 5 percent or even 1 percent of the mixture. It is not the amount of tobacco, but rather the fact that tobacco is present in the ceremonies, that is important.
One could argue that the lack of change in attendance numbers at sweat lodge ceremonies after the ban is indicative that a substantial burden does not
2005 WL 2671541, at *5 (citation to transcript omitted). Because defendants have prohibited all tobacco, Farrow is unpersuasive. Defendants further rely on Adams v. Mosley, No. 2:05-cv-352, 2008 WL 4369246 (M.D. Ala. Jan. 7, 2008). Because the plaintiff in Adams provided no evidence on the importance of tobacco in his religious ceremonies, the court found that defendants did not violate RLUIPA. Id. at *11-12. Plaintiffs have presented extensive evidence on the importance of tobacco to their religious beliefs.
41

exist. This argument, however, is not persuasive. As Moves Camp noted in his testimony, tobacco to the Lakota is like the Bible to Christians. In keeping with this analogy,28 Christians would still likely attend church and other religious ceremonies even if the Bible was removed from the proceedings. But it is equally as likely that Christians would find their ability to practice Christianity substantially burdened by their inability to rely on the Bible during such ceremonies.29 Turning back to the case at hand, the fact that attendance at sweat lodge ceremonies has not changed after the ban does not prove that tobacco is unnecessary to practice the Lakota religion; it simply shows that the sweat lodge ceremonies still play an important role in the lives of the inmates attending such ceremonies, despite the lack of tobacco. Thus, plaintiffs have met their burden in showing that the complete tobacco ban is a substantial burden on their religious exercise. II. Compelling Governmental Interest
Because plaintiffs have met their threshold showing that defendants have substantially burdened their religious exercise, defendants bear the burden to show that the tobacco ban was in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-2(b); 42 U.S.C. § 2000cc-
28 Although the analogy is not perfect, it is helpful. 29 Bible verses are often read during Christian ceremonies.
42

1(a)(1), (2). “The Supreme Court has remarked that ‘context matters’ in the applications of [the] ‘compelling governmental interest’ standard, and that RLUIPA does not ‘elevate accommodation of religious observances over an institution’s need to maintain order and safety.’ ” Fegans v. Norris, 537 F.3d 897, 902 (8th Cir. 2008) (quoting Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)). In passing RLUIPA, Congress was “mindful of the urgency of discipline, order, safety, and security in penal institutions.” Cutter, 544 U.S. at 723. Courts should apply RLUIPA with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Id. (citation to RLUIPA’s legislative history omitted).
Because context matters, the court must review the alleged compelling government interest with reference to the particular individuals and circumstances at issue; religious rights cannot be substantially burdened out of a desire to enforce a general policy. 42 U.S.C. § 2000cc-1(a) (“No government shall impose a substantial burden on the religious exercise of a person . . . confined to an institution . . . even if the burden results from a rule of general applicability[.]”). Under RLUIPA, “ ‘no longer can prison officials justify restrictions on religious exercise by simply citing to the need to maintain order and security in a prison.’ ” Alvarez v. Hill, 518 F.3d 1152, 1156 (9th Cir. 2008)
43

(quoting Greene v. Solano Cnty. Jail, 513 F.3d 982, 989 (9th Cir. 2008)); see also Spratt v. Rhode Island Dep’t of Corr., 482 F.3d 33, 39 (1st Cir. 2007) (“[M]erely stating a compelling interest does not satisfy the [State’s] burden on this element of RLUIPA.”).
The alleged security concerns must be “grounded on more than mere speculation, exaggerated fears, or post-hoc rationalizations.” Fowler v. Crawford, 534 F.3d 931, 939 (8th Cir. 2008) (quotation omitted). Defendants “must do more than merely assert a security concern . . . they ‘must do more than offer conclusory statements and post hoc rationalizations for their conduct.’ ” Murphy, 372 F.3d at 988-89 (quoting Hamilton v. Schriro, 74 F.3d 1545, 1554 (8th Cir. 1996)). Courts need not defer to a judgment about prison security if there is “substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations[.]” Fegans, 537 F.3d at 902 (explaining the development of this standard).
Because post-hoc rationalizations provide an insufficient basis to find a compelling governmental interest, the court must look to the compelling interest asserted by defendants at the time of the ban. There are only two contemporaneous written documents about the DOC’s decision to ban tobacco: Weber’s letter dated October 19, 2009, addressed to “Tribal Liaisons, Spiritual Leaders, Pipe Carriers, and Sundancers, (Ex. 103) and Wagner’s email dated October 19, 2009, to various DOC officials. (Ex. 108).
44

The majority of the two contemporaneous documents states that
defendants banned tobacco because they believed that tobacco is not
traditional in Lakota religious ceremonies. In Weber’s letter, he stated that the
Medicine Men and Spiritual Leaders, who lead ceremonies at our facilities, have brought to our attention that tobacco is not traditional to the Lakota/Dakota ceremonies . . . . They have requested that tobacco be removed from Native American Ceremonies[.]. . . Effective 10/19/09, the SDDOC will follow the advice of the respected Medicine Men and Spiritual Leaders and remove tobacco from Native American Ceremonies.
Ex. 103. And Wagner’s email listed religious, not security, reasons for banning
tobacco:
[T]obacco is being removed from all Native American Ceremonies per the request of Medicine Men who lead ceremonies at our facilities. . . . When inmates come to you to complain, please remind them that we are honoring the request of the respected Medicine Men and are going back to their traditional ways.
Ex. 108 (emphasis added). Defendants primarily framed the ban as the DOC’s
efforts to accommodate the spiritual leaders’ requests.
The portion of the contemporaneous written documents that does
address security concerns is limited to two out of five paragraphs of Weber’s
letter where he describes the abuse of tobacco by inmates. His letter states that
“[m]any inmates have been caught separating the tobacco from their tie and
pipe mixtures. This tobacco is then sold or bartered to other inmates.” Ex. 103.
Weber’s letter also stated that prison gangs pressure inmates to sell their
tobacco instead of using it for spiritual reasons. Ex. 103.
45

To support their contention that security reasons justified the ban, during the trial defendants offered a disciplinary report showing that Brings Plenty had been caught one time with a screen that had tobacco residue on it. Ex. 117. Wagner also testified that she saw tobacco-related disciplinary reports during the time period in which DOC permitted inmates to use tobacco in religious ceremonies. Tr. 236:2-14 (describing an incident involving Marcel Boyd, a former NACT president who is not a named plaintiff in this action).30
Defendants also offered the testimony of Lake, who stated that he saw violence involving tobacco and he felt threatened by other inmates due to his access to tobacco in religious ceremonies. But Creek and Brings Plenty, who have been incarcerated for longer than Lake, testified that they have not been subject to threats from other inmates. The DOC presented no other evidence that tobacco from Native American religious ceremonies created a security or safety risk. And Weber was unable to provide any evidence of how many tobacco-related offenses occurred before and after the ban.
The remainder of the evidence offered by defendants consists of opinions and beliefs by defendants that were developed after they banned tobacco. There is no other contemporaneous evidence to support a decision to ban all tobacco.
30 During trial, the court received Exhibit 146, which contains a list of 33 tobacco-related violations for NACT members during a 13-month time period. Ex. 146. Defendants offered no evidence that these 33 violations posed any security risk. Moreover, defendants did not offer a similar report for the time period after the tobacco ban took effect, which makes it impossible for the court to determine whether the ban eliminated the violations.
46

Defendants assert that they do not need to provide the documentation, and they are entitled to deference in determining that safety concerns justify the tobacco ban. Docket 176 at 26 (“The mandate that the Court offer deference to the judgment and consideration of prison officials does not require this sort of proof.”). But RLUIPA requires defendants to offer more than conclusory statements for their alleged security concern. Murphy, 372 F.3d at 988-89.
Defendants began a renewed investigation into tobacco use in Native American religious ceremonies after a September 2009 meeting with Has No Horses. Defendants then met with Stone and drafted a letter supporting the ban for him to sign and they solicited a statement from Johnston. Two Dogs then drafted a letter to defendants supporting the ban. Defendants did not consult with Creek, Brings Plenty, or any other member of NACT before completely banning tobacco to ascertain the scope of plaintiffs’ religious beliefs.
Based on the timing of the tobacco ban, which occurred shortly after the meeting with Has No Horses, the court finds that the ban was implemented to effectuate what defendants believed was the advice of the medicine men and spiritual leaders regarding the Lakota religion rather than due to security reasons. Defendants essentially enforced what they determined to be the more “traditional” Lakota belief. But the state may not determine what is “traditional” or “orthodox” within a certain religious tradition. See, e.g.,
47

Grayson v. Schuler, 666 F.3d 450, 453-55 (7th Cir. 2012) (“Prison [officials] may not determine which religious observances are permissible because [they are or are not] orthodox.”). After considering the evidence presented to the court, the court finds that defendants have not shown a compelling governmental interest in banning all tobacco. III. Existence of Less Restrictive Means
Even if defendants had a compelling governmental interest, defendants must also prove that they chose the least restrictive means possible to further that interest. 42 U.S.C. § 2000cc-1(a)(2). Prison officials must seriously consider other alternatives before implementing their chosen policy. Murphy, 372 F.3d at 989 (reasoning that the Eighth Circuit “require[s] some evidence that [the DOC’s] decision was the least restrictive means necessary to preserve its security interest.” (citing 42 U.S.C. § 2000cc-1(a)(2))); see also Alvarez, 518 F.3d at 1156 (“Under RLUIPA, prison officials bear the burden of establishing that the restriction challenged is the least restrictive alternative to achieve a compelling governmental interest.” (citation omitted)). Because defendants did not discuss their plans to ban tobacco with plaintiffs before implementing the ban, they were unable to formulate any less restrictive means with plaintiffs.
Brings Plenty and Creek both testified that it would be acceptable if only pipe-carriers and fire-keepers or outside volunteers were responsible for making tobacco ties and prayer flags. Weber admitted that limiting the number
48

of inmates who may make tobacco ties could control the unauthorized use of tobacco.
Plaintiffs and Moves Camp agreed that it would be acceptable if staff or volunteers transported tobacco ties, prayer flags, and the pipe mixture directly to the site of the religious ceremonies. Plaintiffs agree with Moves Camp that the amount of tobacco in the tobacco and red willow bark mixture could be reduced to 5 or 10 percent tobacco. Plaintiffs believe that more restrictive security measures could also be used, such as cell restrictions, disciplinary segregation, or administrative segregation if an inmate violates the tobacco policy. The facilities’ dogs, which are trained to search for tobacco, could be used when inmates leave the tobacco tie room or any other ceremony where the tobacco mixture is allowed.
Plaintiffs also suggest that defendants allow tobacco for religious purposes at the lower-level security DOC facilities but not at higher-level security facilities such as the Jameson Annex. Defendants could also consider allowing tobacco only during certain ceremonies, such as the sweat lodge ceremonies, because Weber testified that there have been no security problems at sweat lodge ceremonies in 31 years. Tr. 533:3-9. Defendants could also consider allowing fewer Lakota ceremonies to be conducted with the tobacco mixture, which would provide defendants greater opportunity to supervise ceremonies.
49

Defendants argue that Weber addressed all of plaintiffs’ suggested alternatives “at trial in his testimony.” Docket 176 at 32. But defendants offered no evidence that defendants considered any of plaintiffs’ proposed alternatives before banning all tobacco. While defendants need not “refute every conceivable option in order to satisfy the least restrictive means prong,” they must offer some evidence that they considered other alternatives before implementing a policy that substantially burdens plaintiffs’ religious beliefs. Fowler, 534 F.3d at 940 (quotation omitted). Defendants adjusted the amount of tobacco in the mixture and instituted other limitations throughout the years. But after the 2005 decision to reduce the amount of tobacco in the mixture from 50 percent tobacco to 25 percent tobacco, defendants did not offer evidence of other plans to control the alleged tobacco abuse.
Defendants, citing Fowler v. Crawford, 534 F.3d 931 (8th Cir. 2008), contend that the court must defer to their determination that there are no less restrictive means. In Fowler, the court reasoned that because it was “presented only with disputes regarding professional judgment, ‘our inferences must accord deference to the views of prison authorities’ where those views rest on more than mere speculation and conjecture.” Id. at 943 (quoting Beard v. Banks, 548 U.S. 521 (2006)). But Fowler concerned a summary judgment motion where the plaintiff failed to “set forth specific facts showing a genuine issue for trial.” Id. at 940 (citing Fed. R. Civ. P. 56(e)(2)). Moreover, the plaintiff
50

in Fowler refused the alternatives proposed by the prison officials. Id. at 939-40 (“The record before us plainly reveals that JCCC officials suggested alternatives to and sought a compromise with Fowler, to no avail.”).
Here, defendants never suggested any alternative to plaintiffs. Instead, defendants met with a few spiritual leaders, one of whom, Has No Horses, they misunderstood, and declared to plaintiffs that they were returning inmates to their traditional ways at the request of the medicine men. Fowler’s holding is inapplicable to the facts in this case.
Weber testified that he had tried “everything he could think of” before banning tobacco. Tr. 590. Wagner researched other institutions’ policies and found that North Dakota and Nebraska are tobacco-free. It appears that she also reviewed Minnesota’s written policy, which allows tobacco if certain conditions are met. Exs. 1, 2, and 3. Defendants did not provide any other evidence of research into less restrictive means before or during the trial. In response to the United States’ statement of interest, however, defendants provided copies of prison policies regarding tobacco from Wyoming, New Hampshire, Nebraska, and Idaho. Docket 185-1. There is no indication, however, that defendants consulted with Wyoming, New Hampshire, or Idaho before banning all tobacco.
Defendants, citing Brunskill v. Boyd, 141 Fed. App’x 771 (11th Cir. 2005); Smith v. Beauclair, No. Cv-03-333, 2006 WL 2348073 (D. Idaho Aug. 11,
51

2006); Roles v. Townsend, 64 P.3d 338 (Idaho Ct. App. 2003), argue that “[o]ther courts have agreed that a tobacco ban is the least restrictive means for addressing the safety and security concerns regarding tobacco in prisons.” Docket 176 at 29.
In Roles, an inmate alleged that the state prison’s policy to ban all tobacco violated Idaho’s Free Exercise of Religion Act. 64 P.3d at 338-39. The court found that the state had shown a compelling governmental interest in banning tobacco because it promoted “public health, provide[d] an environment free from second-hand smoke, [r]educed litigation related to second-hand smoke, protecte[d] buildings against property damage, and curtail[ed] rising medical costs.” Id. at 339.
Roles is unpersuasive because the inmate did not allege a RLUIPA violation, and it was unclear how much tobacco the inmate requested be present in his smoking mixture. Here, Moves Camp testified that 1 to 10 percent tobacco would be a sufficient amount to allow plaintiffs to exercise their religious beliefs. Moreover, defendants have not alleged medical reasons for banning tobacco.
In Smith v. Beauclair, the inmate requested permission to smudge a mixture of botanicals and tobacco in his cell and smoke tobacco in his cell. Id. at *3-4. The inmate’s professed religious beliefs were wholly different from the other Native American inmates. Id. The court found that “Defendants have met
52

their burden of showing the legitimate penological reason for burdening Plaintiff’s request to smoke and burn tobacco in his cell.” Id. at *9 (emphasis added) (“[E]ven under the stricter standard of RLUIPA, smoking and burning tobacco in an inmate’s cell will not be accommodated.”).
Here, plaintiffs do not seek to either hold, smoke, or otherwise use tobacco in their cells. Instead, plaintiffs seek to use tobacco in their pipe mixture, tobacco ties, and prayer flags during certain ceremonies at a different location in the prison. It appears that all burning of tobacco will be conducted outside in the sweat lodge when the pipe is smoked or the tobacco ties or prayer flags are burned. If a pipe ceremony separate from a sweat lodge ceremony is held, it could also be held outside to reduce the risk of exposure to second-hand smoke and protect buildings from property damage. Thus, Smith is unpersuasive.
In Brunskill, the inmate’s request for permission to possess certain religious materials, including tobacco, was denied, and he brought a lawsuit against the prison alleging, in part, an RLUIPA claim. 141 Fed. App’x at 773. Because the defendants offered other alternatives (not specified in the case), the court found that the inmate could not show that the defendants had substantially burdened the exercise of his religion. Id. at 776. Brunskill is unpersuasive because the inmate sought possession of tobacco in his cell. As stated above, plaintiffs do not seek possession of tobacco in their cells.
53

Due to the differences in the cases cited by defendants, the court does
not agree with defendants’ statement that “[o]ther courts have agreed that a
tobacco ban is the least restrictive means for addressing the safety and security
concerns regarding tobacco in prisons.” Docket 176 at 29.
Furthermore, the evidence of what other prisons have done to
accommodate inmates’ religious practices does not support defendants’
decision to ban all tobacco. See Fowler, 534 F.3d at 942 (reasoning that other
prisons’ actions are relevant although not controlling as to what prison officials
should do in their own institutions). While some state prison systems have
completely banned tobacco, the Federal Bureau of Prisons (BOP) provides that
its facilities should determine “”[i]ndoor and outdoor areas authorized and
designated for the ritual use of tobacco; and [w]here applicable, procedures for
procuring, storing, and using tobacco for rituals.” Docket 173-1, Bureau of
Prisons, Program Statement: Religious Beliefs and Practices, Statement P5350.099, at ¶ 20(i)-(j) (2004).31 In the RLUIPA context, the BOP’s ability to
31 Defendants contend that the court should not take judicial notice of the BOP policy (even though they submitted four state prison policy statements) because there is no evidence of a particular policy at any federal institution in the record and, if the policy was relevant, plaintiffs should have offered it at trial. Docket 176 at 39-40. If a fact “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned[,]” then the court can take judicial notice of the fact. Fed. R. Evid. 201(b)(2). The policy was passed pursuant to 28 C.F.R. § 548.10-20 and 28 C.F.R. § 540.48. Docket 173-1 at 3. The policy is available online from the BOP’s website. See http://www.bop.gov/policy/progstat/5360_009.pdf. (last visited September 19, 2012). Thus, the policy’s accuracy can be readily determined. BOP’s policy is relevant because it states that every institution should create a plan for
54

accommodate religious exercise with less restrictive alternatives provides evidence of the feasibility of such measures in state prison systems. See, e.g., Spratt, 482 F.3d at 42 (acknowledging that prison facilities differ but reasoning that “in the absence of any explanation by [the state department of corrections] of significant differences between [the state facility] and a federal prison that would render the federal policy unworkable, the Federal Bureau of Prisons policy suggests that some form of inmate preaching could be permissible without disturbing prison security.”).
Multiple state prisons allow their inmates to use tobacco for religious purposes. See, e.g., Fowler, 534 F.3d at 933 (noting that practitioners of Native American faith at Jefferson City Correctional Center, a maximum security prison, are permitted to possess a “sacred bundle” consisting of “a prayer pipe, sage, cedar, sweet grass, tobacco, a medicine bag, and prayer feathers”); Thunderhorse v. Pierce, 364 Fed. Appx. 141, 147-48 n.5 (5th Cir. 2010) (per curium) (upholding ban on pipe use in cells but noting that the facility allowed the use of pipes in outdoor ceremonies); Caldwell v. Folino, No. 2:08-cv-00122, 2011 WL 4899964, at *8-9 (W.D. Pa. Oct. 14, 2011) (noting that Pennsylvania Department of Corrections allows Native American inmates to have a pinch of tobacco in their medicine bags); Delgado v. Ballard, No. 2:09-cv-01252, 2011
handling tobacco used in religious ceremonies, meaning that the BOP has not outlawed tobacco in every institution. Accordingly, the court takes judicial notice of Docket 173-1. Even if the court did not take judicial notice of BOP’s policy, the court would reach the same outcome in this case.
55

WL 7277826, at *8-9 (S.D. W. Va. Oct. 6, 2011) (reasoning that the prison’s “Operational Procedure permits the plaintiff to smoke a tobacco mixture in a prayer service[.]”); Hopson v. TDCJ-CID, No. 6:09-v-506, 2011 WL 4554379, at *2-3 (E.D. Tex. Sept. 29, 2011) (noting that the facility’s policies only prohibited possession of religious tobacco in inmates’ cells); Newberg v. Geo Group, Inc., No. 2:09-cv-625, 2011 WL 2533804, at *4-5 (M.D. Fla. June 27, 2011) (holding that “Plaintiff’s claims are moot due to the implementation of a new . . . policy permitting Native American residents to smoke tobacco, smudge, and perform other Native American rites and ceremonies[.]”); Taylor v. Hubbard, No. 1:10-cv00404, 2010 WL 3033773, at *1-2 (E.D. Cal. July 30, 2010) (explaining that inmate was permitted tobacco during ceremonies but not in cell); Vega v. Rell, No. 3:09-cv-737, 2011 WL 2471295, at *3 (D. Conn. June 21, 2011) (noting that Native American prisoners “can burn tobacco”); Bostwick v. Oregon Dep’t of Corrections, No. 09-657, 2011 WL 1261168, at *2 (D. Or. Mar. 31, 2011) (noting that “inmates are not permitted to have tobacco in their cells because the inmate could use it himself or sell it to other inmates, and because it presents a fire hazard. Religious volunteers do bring tobacco for use during ceremonies where the volunteer supervises its use[.]”); Bailey v. Rubenstein, No. 2:08-cv01204, 2009 WL 1024614, at *2 (S.D. W. Va. Apr. 15, 2009) (reasoning that because the facility permitted Native American inmates “to smoke in religious ceremonies despite the generally applicable tobacco ban,” plaintiff’s rights
56

under RLUIPA were not substantially harmed); Skenandore v. Endicott, No. 05C-0234, 2006 WL 2587545, at *13 (E.D. Wis. Sept. 26, 2006) (upholding restrictions where inmates were not permitted to smoke tobacco in their cells but could do so in religious ceremonies outside of their cells ).
While “ ‘evidence of policies at one prison is not conclusive proof that the same policies would work at another institution,’ ” Fowler, 534 F.3d at 941 (quoting Spratt, 482 F.3d at 42), it is clear that federal and multiple state correctional institutions allow some use of tobacco by Native American inmates in their religious ceremonies. This widespread allowance of tobacco in prisons lends substantial credence to plaintiffs’ position that less restrictive alternatives to a complete ban on the use of tobacco in Lakota religious ceremonies is possible. Given these cases and defendants’ lack of evidence supporting their position, defendants have not met their burden of proof that they implemented the least restrictive means to further a compelling interest. IV. Injunctive Relief
As relief, plaintiffs seek to reinstate the tobacco policy that was in effect before the tobacco ban, which allowed inmates who practice the Native American religion to have one-eighth cup of a mixture of 25 percent tobacco and 75 percent red willow bark. Defendants contend that plaintiffs are not entitled to injunctive relief under the Prison Litigation Reform Act (PLRA). The PLRA provides that “[p]rospective relief in any civil action with respect to prison
57

conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1).
Even though defendants violated plaintiffs’ federal rights under RLUIPA, the PLRA states that “[t]he court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626. Due to defendants’ professed security concerns, even if they were post hoc rationalizations for banning all tobacco, reinstating the DOC’s policy regarding tobacco that was in effect before the ban is not the most narrowly tailored plan.
In the event that the court does not reinstate the policy that was in effect before the ban, plaintiffs suggest that the court direct the parties to propose an order. Thus, the parties are ordered to meet and confer and propose to the court the terms of a narrowly tailored injunction.
CONCLUSION The court conducted a court trial on plaintiffs’ RLUIPA claim. After hearing all of the evidence, the court finds that plaintiffs have met their threshold burden to show that defendants’ decision to ban all tobacco substantially burdens their religious exercise. Defendants have not met their burden to prove that they had a compelling governmental interest for banning
58

all tobacco. Even if defendants had asserted a compelling governmental interest, they have not proven that the complete ban was the least restrictive means available to further that governmental interest. Thus, defendants violated RLUIPA by banning all tobacco. The parties should meet and propose an appropriate, narrowly tailored injunction, which should include revisions to the tobacco policy for inmates practicing the Lakota religion. Accordingly, it is
ORDERED that the parties will meet and confer about the terms of a narrowly tailored tobacco policy and inform the court about their progress toward that settlement by November 13, 2012. If the parties fail to reach an agreement of the terms of an injunction by November 13, 2012, the parties will each submit their proposal to the court by November 20, 2012. The parties will then have until December 4, 2012, to file any objections to the proposal of the opposing party.
Dated September 19, 2012. BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER CHIEF JUDGE
59

 
 UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

NATIVE AMERICAN COUNCIL OF

)

TRIBES,

)

BLAINE BRINGS PLENTY, and

)

CLAYTON CREEK,

)

)

Plaintiffs,

)

)

vs.

)

)

DOUGLAS WEBER, Warden of the

)

South Dakota State Penitentiary,

)

DENNIS KAEMINGK, Secretary of the )

Department of Corrections,

)

)

Defendants.

)

CIV. 09-4182-KES
ORDER DENYING STAY AND AWARDING ATTORNEY FEES
AND SALES TAX

Plaintiffs, Native American Council of Tribes (NACT), Blaine Brings

Plenty, and Clayton Creek, succeeded in a court trial against defendants,

Douglas Weber and Dennis Kaemingk, showing that a complete ban of tobacco

in Department of Correction (DOC) facilities violates the Religious Land Use

and Institutionalized Persons Act (RLUIPA). Native Am. Council of Tribes v.

Weber, 897 F. Supp. 2d 828 (D.S.D. 2012). Plaintiffs sought injunctive relief in

order to use tobacco during their religious ceremonies that take place at penal institutions.1

Defendants now request a stay pending appeal pursuant to Federal Rule

1 Defendants’ policy banning all tobacco, including tobacco used in Native American ceremonies, in DOC facilities was the precursor to plaintiffs’ suit.

of Civil Procedure 62(c) of the court’s final judgment and remedial order. Plaintiffs resist this motion. Docket 43. For the following reasons, defendants’ motion to stay the preliminary injunction pending appeal is denied.
Plaintiffs also seek an award of attorney fees. Initially they sought a total of $92,972.52 for attorney fees and $5,578.35 for sales tax. Costs were awarded by the Clerk of Courts in the amount of $597.02. Defendants objected to $22,000 of the request. After defendants’ objections were filed, plaintiffs stipulated to a reduction of $22,000 from their requested fee award. The court has reviewed the request and finds the hourly rate and the number of hours to be reasonable and awards the full amount of the reduced request—$70,972.52 for attorney fees and $4,378.35 for sales tax.
DISCUSSION Whether it is appropriate to suspend injunctive or equitable relief imposed by the district court during the pendency of an appeal is controlled by Federal Rule of Civil Procedure 62(c).2 The rule “ ‘codifies the inherent power of courts to make whatever order is deemed necessary to preserve the status quo and to ensure the effectiveness of the eventual judgment.’ ” Knutson v. AG Processing, Inc., 302 F. Supp. 2d 1023, 1033 (N.D. Iowa 2004)
2 The rule provides that “[w]hile an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(c).
2

(quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2904 (2d ed. 2012)). The court considers the following factors3 in determining whether to grant a stay pending appeal:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies. Brady v. Nat’l Football League, 779 F. Supp. 2d 1043, 1045-46 (D. Minn. 2011) (quoting Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987))).
A stay intrudes upon the ordinary process of judicial review and administration and is not routinely done as a matter of right even if the moving party might sustain irreparable harm. Nken, 556 U.S. at 427 (citations omitted). Because stays are matters of judicial discretion, the moving party “bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 434 (citations omitted). “Because the burden of meeting this standard is a heavy one, more commonly stay requests will not meet this
3 These are the same or similar four factors used to determine whether a preliminary injunction is appropriate under the analysis outlined in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981).
3

standard and will be denied.” Brady, 779 F. Supp. 2d at 1046 (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2904 at 503-05 (2d ed. 2012)).
In its amended memorandum opinion and order, the court determined plaintiffs successfully showed they had a likelihood of success on the merits on their RLUIPA claim against defendants in their official capacities because: (1) plaintiffs proved there was a substantial burden on their ability to exercise their religion; (2) defendants could not meet their burden of showing they had a compelling governmental interest in banning all tobacco; and (3) defendants did not show that the tobacco ban was the least restrictive means of furthering a compelling governmental interest. Native Am. Council of Tribes, 897 F. Supp. 2d at 848-49, 851, 855.
Defendants claim they have a strong argument favoring their position on appeal because of the deference that is due to prison officials when considering matters of prison administration. See Cutter v. Wilkinson, 544 U.S. 709, 722-23, 725 n.13 (2005); Fowler v. Crawford, 534 F.3d 931, 939 (8th Cir. 2008). As Fowler acknowledged, however, defendants must do more than merely speculate, state exaggerated fears, or express post-hoc rationalizations. Id. at 939. This court carefully considered all of defendants’ security concerns and other arguments regarding prison administration in its amended order and found against defendants after a trial on the merits. For these reasons,
4

defendants have failed to make a strong showing that they are likely to succeed on the merits of their claims. See Nken, 556 U.S. at 426 (noting that the stay applicant must make “ ‘a strong showing that he is likely to succeed on the merits’ ”). Accordingly, this factor weighs against staying the permanent injunction.
The court will analyze the second and third factors together because these factors address both sides of the same issue. The second factor asks “whether the applicant will be irreparably injured absent a stay[,]” and the third factor inquires “whether issuance of the stay will substantially injure the other parties interested in the proceeding[.]” Hilton, 481 U.S. at 776.
Defendants argue that the irreparable harm they will suffer is that without a stay, defendants must allow ceremonial tobacco at all DOC institutions. As a result, defendants would have to implement revised policies, which would require effort and expense that may necessitate additional staffing and equipment costs. These resource expenses would not be recouped if they are successful on appeal. As support for their position, defendants cite two district court opinions from North Carolina and Ohio. The Eighth Circuit Court of Appeals has recognized, however, that “economic loss does not, in and of itself, constitute irreparable harm . . . [except] where the loss threatens the very existence of the [appellant]’s business.” Packard Elevator v. I.C.C., 782 F.2d 112, 115 (8th Cir. 1986). Furthermore, defendants’ alleged harm is
5

speculative. Defendants routinely draft changes to their policies and implement changes without incurring additional costs through use of their existing staff. Because defendants’ loss is primarily economic and the economic losses, if any, are speculative, the court finds this factor does not weigh in defendants’ favor.
The harm to plaintiffs constitutes irreparable injury because defendants’ actions place a substantial burden on plaintiffs’ religious exercise. The Supreme Court has recognized that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Citing Elrod, the Third Circuit Court of Appeals held that “[l]imitations on the free exercise of religion inflict irreparable injury.” Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 178 (3d Cir. 2002). While the present case was not decided based on a violation of the First Amendment, the court did find a violation of RLUIPA. The Eighth Circuit has recognized that “ ‘[b]y enacting RLUIPA, Congress established a statutory free exercise claim encompassing a higher standard of review than that which applies to constitutional free exercise claims.’ ” Gladson v. Iowa Dep’t of Corr., 551 F.3d 825, 832 (8th Cir. 2009) (quoting Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 987 (8th Cir. 2004)); see also Van Wyhe v. Reisch, 581 F.3d 639, 649 (8th Cir. 2009) (reasoning that RLUIPA “explicitly provides for a cause of action to enforce the heightened free exercise
6

right it creates.”) (citing 42 U.S.C. § 2000cc-2(b)). Because RLUIPA claims require a higher standard of review than typical free exercise claims and because plaintiffs succeeded on their RLUIPA claim, the court finds that plaintiffs have established irreparable injury. This factor weighs in favor of denying defendants’ motion to stay.
The final factor in the court’s analysis is the public interest. Hilton, 481 U.S. at 776. Defendants claim that the public interest lies in their favor because the public has a strong interest that its prisons run in an orderly fashion. See Sidebottom v. Schiriro, 927 F. Supp. 1221, 1226 (E.D. Mo. 1996). Plaintiffs argue that the public interest favors the protection of constitutionally protected rights. See Tenafly, 309 F.3d at 178. Both are important public interests. This factor does not favor either plaintiffs or defendants.
The court finds, after balancing all four factors and considering the relative strength of each, that defendants have not carried their burden on this issue. For these reasons, defendants’ motion to stay is denied.
CONCLUSION Defendants were unable to make a strong showing that they are likely to succeed on the merits of their claim. The court analyzed the same arguments and case law in determining that permanent injunctive relief was appropriate, and nothing has been brought forth that would convince the court to reach a different conclusion now. While defendants can establish a cognizable harm
7

absent a stay, that harm is not irreparable, and it is not enough to outweigh the harm to plaintiffs if the stay is granted. Accordingly, it is
ORDERED that defendants’ motion to stay the permanent injunction pending appeal (Docket 209) is denied.
IT IS FURTHER ORDERED that plaintiffs’ motion for attorney fees and sales tax (Docket 203) is granted. Judgment will be entered in favor of plaintiffs and against defendants in the amount of $75,350.87.
Dated July 29, 2013. BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE
8