Appeals court: Navajo inmate can wear headband, eat venison (UPDATE)

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By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — A Navajo Indian imprisoned in Wisconsin can wear a headband in his cell and celebrate a tribal feast with wild venison, a federal appeals court has ruled.

David Schlemm filed a federal lawsuit in Madison in 2011 demanding he be allowed to wear a colorful headband while he prays and celebrate his tribe’s annual Ghost Feast with tacos containing venison rather than the beef stew prison officials offer.

U.S. District Judge William Conley dismissed Schlemm’s demands last year, ruling that prison regulations barring colorful headbands prevent gang members from identifying themselves. Prohibiting Schlemm from eating wild meat doesn’t impose a substantial burden on his religion and the state has a compelling interest in both holding down food costs and using inspected meat, Conley wrote.

A three-judge panel from the 7th Circuit U.S. Court of Appeals reversed Conley on Tuesday. Judge Frank Easterbrook wrote that Schlemm’s headband isn’t a plausible means of signaling gang membership since he has offered to wear it only in his cell or at group religious ceremonies and it will contain only earth tones that aren’t associated with gangs.

As for the wild venison, Easterbrook said that saving a few dollars and a “bureaucratic desire” to follow the rules aren’t compelling reasons to deny the meat. The Religious Land Use and Institutionalized Persons Act requires prisons to change their rules to accommodate religious practices, he noted.

He rejected the state’s contention that providing wild venison would be unsafe, noting the meat is consumed widely. He also noted the prisons allow external food for Passover and sweat lodges, making it “hard to credit an argument that any culinary accommodation will bring the prison’s administration to its knees.”

Schlemm also demanded weekly sweat lodge ceremonies rather than monthly as well as the right to smoke a personal pipe and wear traditional attire such as a ribbon shirt or bear-claw jewelry. Conley ruled that Schlemm failed to exhaust the prison system’s internal request process on those demands. The 7th Circuit panel agreed.

The state Department of Justice handled the lawsuit for the Department of Corrections. DOJ spokeswoman Anne E. Schwartz didn’t immediately respond to an email seeking comment.

Schlemm was convicted in 1999 of kidnapping, battery and multiple counts of sexual assault. He’s not eligible for parole until 2026; his mandatory release date is 2072. He was being held at the Wisconsin Secure Program Facility, the state’s most secure prison, when he filed the lawsuit but has since been moved to the Green Bay Correctional Institution.

Court documents show Schlemm represented himself in the case. A Corrections spokeswoman didn’t immediately respond to an email inquiring about how to contact him.