Nebraska prison rescinds temporary ban on access to outdoor space for Native American religious practices after lawsuit

Hours before a scheduled hearing in federal court, the Nebraska State Penitentiary rescinded a temporary ban revoking access to an outdoor religious space used by Native American inmates.

The reversal comes after the ACLU of Nebraska and Big Fire Law & Policy Group filed a federal civil rights lawsuit against the prison system on Monday on behalf of two Native American men incarcerated at the Nebraska State Penitentiary, or NSP. The lawsuit alleged the men and other Native American inmates were unconstitutionally barred from practicing their religion due to the ban.

“It should not have taken a lawsuit to reach this outcome,” ACLU staff attorney Carter Matt said in a statement. “The government clearly overstepped by barring dozens of people from participating in traditional religious practices. Officials did not relent when our clients advocated for themselves through the grievance process.”

The two men who brought the lawsuit were Joshua Lewis, who is Cherokee and of Tarasca descent, and Tremayne Scott, a member of the Rosebud Sioux Tribe. In total, the ACLU said the policy impacted about 60 people at NSP.

According to the lawsuit, prison officials gave notice in late February that inmates would be banned from accessing the religious space used for Native American practices like smudging and sweat lodge ceremonies in the penitentiary's prison yard for 60 days. The reason for the temporary ban was due to contraband being discovered in an outdoor box used to store supplies, like sage and hand drums, for religious ceremonies.

Neither Lewis nor Scott were suspected of placing the contraband in the box, but according to the lawsuit, all members of the Native American Faith Group at NSP were suspended from accessing the outdoor facilities for 60 days. Members of other faith groups that utilize the outdoor space did not have their access revoked, according to the lawsuit.

The ACLU was set to argue for a temporary restraining order in federal court on Thursday morning to force prison officials to allow members of the Native American Faith Group to use the outdoor space. But that hearing was cancelled after the ACLU got word that the prison had rescinded the policy on Thursday morning.

“Security measures have been added to allow reinstatement of religious land use,” the facility’s warden wrote in a memo shared by the ACLU. “Effective today, NSP will resume the Native American religious land schedule in effect prior to the suspension period.”

The lawsuit is still pending in federal court, and Chief U.S. District Court Judge Robert Rossiter said in an order that the restraining order hearing will be rescheduled if necessary.