Nebraska Court Upholds Order That Father Not Take Son to Sweat Lodge

The court is silent on whether it would be OK to take him to Houston in July.

From yesterday's decision by the Nebraska Court of Appeals in Ewing v. Evans, by Judge Francie Riedmann, joined by Judges Riko Bishop and Lawrence Welch:

Joseph Evans appeals the order of the Lancaster County District Court that overruled his complaint to modify a custody order and parenting plan. We conclude that Evans failed to show a material change in circumstances to warrant modification. Furthermore, we find the district court did not abuse its discretion in enjoining Evans from taking the child into sweat lodges ….

Evans and Ewing are the biological parents of a son born in May 2013. The parties were never married, and their relationship ended in February 2014. On January 23, 2015, Evans was in a severe automobile accident in which he collided with a wall at 75 miles per hour. Among his many injuries, he suffered a broken back, a traumatic brain injury, and bleeding in his brain.

In March 2015, the district court issued a custody order … regarding the parties' son. The order was based on a joint stipulation filed by the parties in which Ewing received sole physical and legal custody of their son and Evans received parenting time set out under a parenting plan….

In 2021, the trial court ordered Evans not to take his son to a sweat lodge, and the Court of Appeals upheld the injunction. There's a lot going on in the opinion, but I'll focus on the sweat lodge issue:

Evans explained that the first 4 years of his life, his grandmother raised him "in the native way." But Evans' mother wanted to raise him herself, so they moved from South Dakota. Evans did not reengage with his Native American heritage until after the 2015 accident. He is not an enrolled member of any tribe, but participates in the Lakota Nation ceremonies, which include sweat lodges, sun dances, and other ceremonies, in South Dakota. He explained that he began reengaging in the ceremonies to heal himself in ways in which traditional medicine "wasn't working" and that he needed to clear that "negative spiritual energy in — in that [sweat] lodge."

Evans takes all of his children to the sweat lodge, including his 3-year-old daughter. A sweat lodge consists of a hole, which holds stones that have been warmed by fire, inside layers of tarps and blankets. Evans' best estimate of the temperature inside the sweat lodge is 100 degrees Fahrenheit at most, but he has previously measured a sweat lodge at 101.2 degrees. The amount of time inside the sweat lodge with the door closed is usually 45 minutes, although the amount of time at the sweat lodge is usually 1½ hours. Evans acknowledged that too much heat could be harmful but explained that his prior inability to remain in a sweat lodge "to finish" is related more to his inexperience on how to control his breathing and panic. He described his need to leave the sweat lodge and lie on the ground was "not only just to get the cold air but also to rest my back. Cause if you have fear, you tense up. You tense up you have a bad back."

Evans testified he lives an "Indigenous life." Evans treats the "Indigenous life" as a family affair, so he wants his son to be involved with his activities. Evans defines an "Indigenous life" as "spirituality," a way of life more than a religion. Evans fears that by not allowing his son in the sweat lodge, its participants will not be able to include him in prayers. Additionally, the child will not be able to hear stories of his ancestors, because the elders with such wisdom tell those stories only while in the sweat lodge.

Susan Roaneagle, who is a member of the Oglala Lakota Nation, explained that a person does not need to be a tribal member to participate in a sweat lodge ceremony and that it was common for people of all religions to participate. There is one door in the sweat lodge, and participants are free to leave during the ceremony. She described sweat lodge ceremonies as a supplement to religion.

Erin, Evans' older daughter, and Roaneagle testified about observing the child in the sweat lodge and not noticing him to be in any kind of distress. Evans' older daughter testified when she was in the sweat lodge with the parties' son, he appeared to be enjoying himself, insofar as he would either sing songs or sleep. Roaneagle recalled that the child appeared to enjoy himself in the sweat lodge and would pray, smile, and sing. She also recalled that after the order barring the child from sweat lodges, he would sit outside with the other children and adults.

Evans testified he took his son to sweat lodges in hopes it would help with his conduct disorder. He believes the sweat lodge teaches self-control. He explained, "Plus if you imagine a hot and dark place and you learn how to control yourself and pray, you'll then learn a lot more body self[-]control." He hoped his son would grow from the experience of overcoming the heat and darkness and learn to listen and be patient and still. He believes his son needs spiritual help.

Ewing countered Evans' testimony by discussing her concerns with her son's health in a sweat lodge. She requested the court maintain its bar on the child's participation in sweat lodges. She believes it is unsafe for him. He takes Clonidine for his [Oppositional Defiant Disorder], which affects his blood pressure. Neither Evans nor Ewing has checked with the child's doctor to ensure the sweat lodge would not have a negative interaction with the Clonidine.

The paramount consideration in all cases involving the custody or visitation of a child is the best interests of that child. Thus, when a court finds that particular religious practices pose an immediate and substantial threat to a child's temporal well-being, a court may fashion an order aimed at protecting the child from that threat. In doing so, a court must narrowly tailor its order, so as to result in the least possible intrusion upon the constitutionally protected interests of the parent.

Although there was testimony regarding prayer and spirituality related to the sweat lodge, based upon the record before us, we cannot determine that Evans' participation in the sweat lodge constitutes a religious practice. Evans is not an enrolled member of any tribe. He testified that he lives an "Indigenous life," which he defined as a "way of life." He wanted his son to experience the sweat lodge not only to learn more about Native American culture, but because he believed it taught self-control. By overcoming heat and darkness, he believed, his son would learn to listen and to be patient and still.

Testimony from other witnesses further negates the sweat lodge as a religious practice in this case. Roaneagle testified that people from all religions participate and need not be tribal members. Erin denied that religion was being practiced at the sweat lodge; rather, she described it as "part of the Native American culture." Having failed to establish that participation in the sweat lodge is a religious practice, we review the district court's order through a best interests analysis.

Here, the district court found that restricting the child's ability to use a sweat lodge was in his best interests. It heard conflicting testimony from each parent. Ewing testified that the sweat lodges posed a danger to the child. Evans testified that the sweat lodges could help the child spiritually, as well as help with his behavior issues. Erin, Evans' older daughter, and Roaneagle all testified that the child did not seem to be in distress when he participated in the sweat lodges. But neither parent confirmed with a healthcare professional whether the sweat lodges could adversely interact with the child's medication.

Although we review the record de novo for an abuse of discretion, appellate courts do not reweigh the credibility attributed to witnesses. The district court appears to have found persuasive Ewing's testimony that the sweat lodge is unsafe, as well as Evans' testimony that he has needed to exit a sweat lodge prior to the completion of the ceremony. Both [the son's therapist] and Ewing testified about the importance of routine for the child and how much transition can negatively impact the child's behaviors. The district court ultimately found Ewing's statements regarding the difficulties in maintaining this routine with the child after his attending a sweat lodge were persuasive.

Because the district court found Ewing's testimony persuasive that the sweat lodges posed a threat to the child's well-being, it determined it was in the child's best interests to restrict his ability to enter the sweat lodge. We find no abuse of discretion in that decision….

Tara L. Gardner-Williams and Joel Bacon, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., represent Ewing.

Comments

[Frank Drackman]

So sort of a Injun Sauna. All the USAF Base Gym's had them, when it's 20 below in Minot North Dakota it's not such a bad place to be.
Remember once a B52 crew on Alert was taking a Schwitz when the Claxon (Klaxon? wasn't that Robert KKK Byrd's Klan title?) went off, and 6 naked guys (AC Commander/Co-pilot/Radar Navigator/Navigator/EWO/Gunner) came sprinting out sans Towels.

Frank

[PMBug]

"The court is silent on whether it would be OK to take him to Houston in July."

There is plenty of gardening work around my house to be done in July and August for anyone looking to get their sweat on.

[Commenter_XY]

There's a lot going on in the opinion...

Just your summary points to a lot going on there. Whoa.

What's with the lawyers not asking an HCP if clonidine is a problem or not with sweat lodges. How is it both parents did not ask? Why would they deliberately not ask?

[Syd Henderson]

That stopped me immediately. It's a simple question. If it does cause problems, then Ewing's concern is commendable, if not, then he doesn't seem to be in any more danger than any other child and that danger shouldn't be hard to research.

You do have to be careful with young children since their bodies have a hard time handling heat, but is 101 degrees dangerous to a seven-year-old?

[Syd Henderson]

Sorry, ten-year old. I don't know where I got the idea he was seven.

[ReaderY]

I think that in a case like this I would tend to agree with Professor Volokh that whether a practice is religious in nature or not is to be taken from the point of view of the person making the religion claim. And here the claimant is the father.

In addition, the testimony offered does not strike me as in any way refuting the claim even if the standard were objective and not subjective. Plenty of people would give the same testimony about baptisms that was used to conclude a sweat lodge is purely secular in nature, that they are open to people from all walks of life. But it would be completely unreasonable to conclude from such testimony that baptism is merely a kind of bath rather and not in any way a religious ceremony.

The issue is important because parents of minority religions often have religious rather than health objections to people doing things with their children. Under the standards the court used, Jews or Muslims could have no religious-rights basis for objecting to someone taking someone taking their children to church, or to be baptised.

I can’t speak to the facts of the case. My view is a sufficiently strong health consideration can override religious claims under a compelling interest standard. I don’t know how strong the health consideration really was here. However, I do think there was a real religious claim here. The judge was wrong to reject it outright. The judge should have accepted it and considered it against the health argument under the appropriate standard.

[ReaderY]

Perhaps participating in the school Christmas play is a good example. Under the “reindeer rule,” if there are enough candy canes, reindeer, etc., to offset the creche, then a Christmas display or pageant is sufficiently secularized to pass Establishment Clause muster.

The mistake in this case was to confuse the Establishment Clause standard with the standard for entertaining Free Exercise claims. The testimony in this case might well have been sufficient to permit a public school to do a sweat lodge as an activity, i.e. a sweat lodge may be sufficiently secular that it doesn’t violate the Establishment Clause. But it would NOT be sufficient to extinguish a Free Exercise claim from a parent objecting to their child participating on grounds that their religion prohibits participating in a heathen ceremony.

For Free Exercise purposes, what is religious or not is determined from the point of view of the claimant’s religion, not some sort of general society standard like the Reindeer Rule or the standard the judge applied in this case.

[David Nieporent]

.

But it would NOT be sufficient to extinguish a Free Exercise claim from a parent objecting to their child participating on grounds that their religion prohibits participating in a heathen ceremony.

A random observation that, whether true or not, has no bearing on the facts of this case.

For Free Exercise purposes, what is religious or not is determined from the point of view of the claimant’s religion,

Another random observation that, whether true or not (answer: not — it's determined from the point of view of the claimant), has no bearing on the facts of this case. He wasn't claiming that it was a religious ceremony for him and his son.

[ReaderY]

Perhaps you shouldn’t be so quick to accuse others of commenting before reading.

“Although there was testimony regarding prayer and spirituality in the sweat lodge, based upon the record before us, we cannot conclude that Evans’ participation in the sweat lodge constitutes a religious practice….”

“Testimony in from other witness further negates the sweat lodge as a religious practice in this case…”

I may be just the know-nothing idiot you keep saying I am, but it kind of sounds to me like there was a factual finding on the question. Both the trial and the appelate courts appear to have gone into the testimony on this particular point in some detail. That in turn suggests both that it was disputed, and that it had some relevance to the case.

[ReaderY]

Also, if the child doesn’t have any special condition, the father might have wanted to get an expert to testify that the temperature in the sweat lodge is not higher than the temperature outdoors in the summer in many parts of the country, and that children have long gone outside in such places. Indeed, in the thousands of years of human existence before air conditioning, children had no alternative but to and came out OK. Assuming of course that the temperature in the sweat lodge really isn’t higher than in Houston in August.

[Roger S]

No expert testimony should be needed to refuse the Mom's phobias. If 101 degree heat were so dangerous, it would be illegal. The judge should not micro-manage practices that are common and legal.

[KenveeB]

I mean, every sauna and hot tub I've ever gone to has had a warning sign that high temperatures can be dangerous to children. And from the elder's comment that when the order came through, the boy sat outside "with the other children," it's not common--but not unheard of--for children to participate in this particular example.

[Roger S]

Cars, bicycles, stoves, swings, and many other things can be dangerous. Some come with warning stickers. Is a family court judge going to ban everything he thinks is dangerous?

[Syd Henderson]

ReaderY: You have to also take account the humidity. But then Houston is still a good example.

[John F. Carr]

Based on the summary above, I think the trial court erred. The evidence showed an adult was worried and the child did not have a doctor's note approving of the lodge. But an injunction should be based on affirmative evidence that the lodge is unsafe, not fear, uncertainty, and doubt.

My childhood had the opposite: I was taken swimming in water colder than 60 degrees.

[Commenter_XY]

That must have been fun = I was taken swimming in water colder than 60 degrees

[A nerdy Fred]

There is ample scope for mischief in courts trying to distinguish between religious practices and spiritual practices, and in this case I see an overlooked angle that points to it being religious for one party involved.

The child treated the sweat lodge as a time and place for prayers. Not proof, because people do pray in non-religious contexts all the time, but it could be the start of a case that the child experienced the sweat lodge as something religious.

[Rev. Arthur L. Kirkland]

The most important point in all of this is to root for the children to overcome the father's substandard parenting. Let's hope they obtain a legitimate education and get the hell out of their father's home and out of Nebraska -- headed toward a strong campus and/or or a modern and educated community, ideally -- the day they graduate from high school.

[ReaderY]

Perhaps you shouldn’t be so quick to accuse others of commenting before reading.

“Although there was testimony regarding prayer and spirituality in the sweat lodge, based upon the record before us, we cannot conclude that Evans’ participation in the sweat lodge constitutes a religious practice….”

“Testimony in from other witness further negates the sweat lodge as a religious practice in this case…”

I may be just the know-nothing idiot you keep saying I am, but it kind of sounds to me like there was a factual finding on the question. Both the trial and the appelate courts appear to have gone into the testimony on this particular point in some detail. That in turn suggests both that it was disputed, and that it had some relevance to the case.

[y81]

Overprotective mother, absent father, no wonder the child has behavioral problems. Drugging him up is not the answer, but of course the medical profession is always happy to dispense pills.

[Rev. Arthur L. Kirkland]

The child might be better off if the father were more absent.