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California tobacco law may impact Native spiritual practices

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The prohibition on the possession or use of tobacco products by inmates and
wards in the Departments of Corrections and Youth Authority began July 1.
The original sponsors of that bill (Assembly Bill 384) that established the
avenue for this ban were Assembly members Tim Leslie, Lynn Daucher, Paul
Koretz, Bill Maze and George Plescia, along with Sen. Jeff Denham and
then-Sens. Ross Johnson, Thomas "Rico" Oiler and Gloria Romero. Although
Gov. Arnold Schwarzenegger is well-known for smoking cigars in the movies
and under a big-top tent outside of the state capitol, he signed a slightly
modified version of this bill into law on Sept. 27, 2004.

Among other features, the law requires the directors of the departments to
adopt regulations to implement this prohibition, and requires that these
regulations include an exemption for departmentally approved religious
ceremonies. The law also prohibits the use of tobacco products by any
person not included among those described above on the grounds of any
institution or facility under the jurisdiction of the correctional and
youth authority facilities, with the exception of residential staff housing
where inmates or wards are not present. It eliminates tobacco products from
the list of items that may be sold at those institutions and facilities.

In analyzing the language of the new law, it makes specific reference to
youth acquisition of tobacco. Any person or entity that furnishes an
incarcerated youth any tobacco product, including paraphernalia or any
controlled substance, will be charged with a misdemeanor or a civil action
brought by authorities in the state. The fine for such an offense is $200
for the first offense, $500 for the second and $1,000 for the third.

Twenty-five percent of each civil and criminal penalty collected will go to
the office of the city attorney, county counsel or district attorney
(whoever is responsible for bringing the successful action) and 25 percent
will be paid to the city or county. Any youth who purchases, receives, or
possesses any tobacco or related paraphernalia will, upon conviction, be
punished by a fine of $75 or 30 hours of community service work.

Although Native peoples in the United States comprise the smallest segment
of the population, we have the second largest prison incarceration rate and
are being sentenced to prisons at increasingly higher rates, according to a
report by the Foundation for National Progress. In 1980, 145 per 100,000 of
the inmates in California's prisons were Native, a rate that grew to 767
per 100,000 in 2000.

Sociological research has focused on the impact of racism and poverty on
Native incarceration rates. In "Conflict, Politics and Crime," author Chris
Cunneen shifts the focus to colonization, socio-economic marginalization,
institutional racism and over-policing by the criminal justice system. He
considers these to be important contributing factors to the high level of
Native incarceration. Health care providers would also point out the high
rates of substance abuse.

Eduardo and Bonnie Duran, Native psychologists and coauthors of the book,
"Native American Post Colonial Psychology," note that the past 500 years of
systematic genocide have been devastating and still currently affect Native
nations and communities. The Durans suggest that psychologists should
incorporate a diagnostic category that reflects the effects of surviving
genocide.

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Impoverished contemporary social realities - such as severely limited
access to educational opportunities, employment and adequate housing, water
supply, health care and traditional food supply, as well as physical and
social isolation, loss of cultural identity and rights, and
intergenerational trauma and post traumatic stress disorder - have all been
shown to contribute to the poor health status of Natives. Such factors have
also been noted to influence Native social dislodgement and alienation from
their Native culture and the dominant culture. All of these factors have
been identified as contributing causes as to why some Native people hurt
themselves or others.

Most treatment services used on Natives are Western-oriented, and these
practitioners consider Native traditional healing methods to be of little
or no utility in the healing process. It is important to note that
alcoholism, chemical dependency and suicides are reaching epidemic
proportions in Indian country and that standard treatment approaches are
not working for many Natives. Culturally relevant treatment services have
been successful where Western methods have failed, and these programs
should continue to be funded. The sacred use of tobacco in prayer and
ceremony has been central to the Native recovery movement.

Prior to contact with Western culture, sacred Native ceremonial and
therapeutic tobacco use by peoples were respected and distinguished from
commercial tobacco abuse, which developed later. Many Native peoples, such
as my own Pit River people, would say that they have used tobacco to invoke
healing, power and other good things since the beginning of time.

Traditionally, Native tobacco is important for prayer and purification, and
to support, strengthen, heal and nurture peoples, Mother Earth, the
universe and all living things. It is gathered or grown in adherence to
strict cultural protocols and used during cultural ceremonies, gatherings
and other important events. Native tobacco does not contain the harmful
chemical additives found in commercial tobacco products and is many altered
steps away from being in a form that is sought after by those who are
addicted to commercial tobacco. In its natural state, Native tobacco could
be compared to apples before it is transformed into apple pie. To the
person who craves apple pie, having apples will not feed this craving.

In some Native communities, only certain people may handle and work with
the sacred tobacco plants. Native tobacco and its smoke are effective for
curing a number of ailments, including, muscle aches, earaches, swelling,
skin infections and toothaches ("Early Uses of California Plants," Balls,
1962). The U.S. Surgeon General acknowledged that many Natives consider
Native tobacco to be a medicine that can improve their health and assist in
spiritual growth when used in a sacred and respectful manner (Surgeon
General's Report, 1998). When Native tobacco is administered in accordance
with traditional Native cultural rules it is neither addictive nor harmful.

To ban or prohibit tobacco use altogether, for which standard pubic health
approaches call, is contrary to the cultural beliefs of many Native peoples
and is inappropriate. Therefore, I am optimistic - but cautiously so - that
the Departments of Corrections and Youth Authority will get it right and
adopt regulations to implement an exemption for departmentally approved
religious ceremonies as it relates to traditional uses of Native tobacco by
incarcerated Natives.

In testing the application of the regulation, I wonder if punitive action
would be taken against an incarcerated Native who keeps Native tobacco for
spiritual purposes in his or her room. If he or she is reprimanded, then in
my opinion the spirit of this section of law is being broken and immediate
action must be taken to correct this situation within the correctional
system. After all, if followers of other faiths who are incarcerated are
permitted to have their religious paraphernalia, then Native people who
follow their cultural traditions should be allowed to have their Native
tobacco and other spiritual items.

Mark LeBeau, M.S. (ABT), is a citizen of the Pit River Nation and has blood
ties to the Cheyenne River Sioux people. He works as the health policy
analyst for the California Rural Indian Board, Inc. LeBeau can be reached
via e-mail at mark.lebeau@ihs.gov.