Exclusion powers of Tribe discussed in work session 

by Feb 28, 2020Front Page, NEWS ka-no-he-da





The ability of leaders of the Eastern Band of Cherokee Indians (EBCI) to exclude people from its territory was discussed during a work session of Tribal Council on Wednesday, Feb. 26.  The meeting was initially set to discuss Tabled Ord. No. 18 (2019) but ended up being more of a discussion on Tabled Ord. No. 124 (2020) – both dealing with proposed amendments to Chapter 2 of the Cherokee Code entitled ‘Exclusion Powers of the Tribe’.  

Ord. No. 18, submitted in October 2019, sought to change Section 2-4 (Terms of exclusion) to add the following language, “Nothing in this Chapter shall serve to bind Tribal Council in the future from reconsidering a person’s exclusion order from Cherokee trust lands and lifting said exclusion order should a change of circumstances warrant such action.  An order of exclusion may be lifted by majority vote.”  

The idea of that ordinance, submitted by EBCI tribal member Kallup McCoy II, was to provide a way for excluded (banished) people to seek entrance back onto EBCI trust lands.  

During Wednesday’s discussion, Michael McConnell, EBCI interim attorney general, said that it was his understanding that Ord. No. 18 would be withdrawn as his office submitted Ord. No. 124 as a broader look at Chapter 2 that included similar language.  

Wednesday’s session began with discussion on Ord. No. 18.  

Birdtown Rep. Boyd Owle said, “I think bringing people back on the reservation like this would be about the same as letting someone out on parole.  I think whoever the family that they harmed or the families they came into contact with that made them become banned should have a say as to why they shouldn’t be brought back – just like a parole board hearing where the family gets to speak as to why they don’t want them out.”  

Painttown Rep. Dike Sneed, former Cherokee Chief of Police, said he is vehemently against the change.  “A lot of the time, the victim was the Eastern Band of Cherokee Indians.  They would bring in loads of dope to the casino and distribute them to the dealers, and we would catch them doing that.  That’s what the majority of these are.  Some are individuals who lived here, and we don’t know who all they stole from to support their habit.” 

He added, “I spoke with as many elders as I could at the casino a few minutes ago, and none of them are in favor of this ordinance going through, and that’s why I can’t support it.” 

Painttown Rep. Tommye Saunooke concurred, “I wouldn’t even consider supporting something like this.  There’s a reason those people were banished.”  

Tribal Council Chairman Adam Wachacha pointed to the portion of Tabled Ord. No. 18 that states the ban could be lifted by a majority vote of Council.  “It takes a two-thirds vote to even do it, but a majority vote isn’t even two-thirds so those are some of the concerns I have in even having consideration on that.  It would at least have to have that because that’s what it takes to even exclude a person.”

Rep. Saunooke noted, “Just about every one of us sitting here has been affected by drugs or alcohol…we don’t need them back here.  They’re criminals.”  

Several years ago, state law changed regarding people excluded by the Tribe who re-enter and trespass on EBCI trust lands.  N.C. House Bill 744 passed and was ratified by Gov. Roy Cooper on June 15, 2018 and took effect on Dec. 1, 2018.  According to information from the General Assembly, “…House Bill 744 would make it a first-degree trespass for a person to enter onto or remain upon lands of the Eastern Band of Cherokee Indians after having been excluded by resolution passed by the Tribal Council.  A first offense would be a Class 2 misdemeanor, and any subsequent offense would be a Class I felony, including a fine of not less than $1,000.”

McConnell addressed the change noting, “The state law did change, and it’s a felony now to violate an exclusion resolution issued by the Tribe.  So, that’s a great step.  The difficulty is in the on-the-ground ‘how do you deal with this’ situation.  We constantly try to work with the police department on how to do that.  One of the sticking points with the tribal process is making sure that the person who is being excluded has been properly served with the exclusion resolution.”    

He added, “We may all know it.  The papers may all be in our offices, but if that person hasn’t been served properly when it goes to court they would have a very good defense to that exclusion.”  

Rep. Saunooke said, “We’ve banished people and they’ve never left here.  It’s a felony now, and that’s a good thing.”  

At this point in Wednesday’s work session, the discussion shifted to Tabled Ord. No. 124 which was deemed read and tabled during February’s Tribal Council session.  

“It takes a broad look at Chapter 2 and makes some additions to it,” said McConnell.  

Some of the proposed changes include: 

* Addition of subsection (d) to Section 2-1 which reads, “The power to exclude contains the power to modify or terminate a previously ordered exclusion.” 

* Addition of subsection (e) to Section 2-1, “The Tribe hereby declares that the power to exclude is an inherent and essential part of Tribal sovereignty.  It is indispensable to the Tribe’s autonomy and self-governance.  Further, it is a natural right of the members of this Tribe, through their tribal leaders and codified tribal law, to exercise the power of exclusion to protect the Tribe’s natural, economic, and cultural resources, and to protect the health, safety, and welfare of tribal members.”  

* Amend subsection (b) to Section 2-3, “Such persons shall be provided with a written statement of the grounds for the proposed exclusion at the same time notice of the hearing is served upon them.  

Currently, Sec. 2-5 (Votes required for exclusion) outlines the number of Tribal Council votes required for various times of exclusion including: 90 day exclusion requires a majority vote, more than 90 day exclusion requires a two-thirds vote, and permanent exclusion requires a three-fourths vote.  

Tabled Ord. No. 124 proposes amending Sec. 2-5 to read, “Once a quorum of Tribal Council is established to consider an exclusion, a majority vote shall be required to approve the exclusion action.  Except for Writs for Emergency Temporary Exclusion, exclusion actions shall be presented to Tribal Council by resolution.”  

Ord. No. 124 would also add Sec. 2-10 (Harboring excluded persons) which reads, “Any person who harbors an excluded person on Cherokee trust lands shall be guilty of a crime and upon conviction thereof may be sentenced to a term of imprisonment not to exceed six months or a fine not to exceed $5,000, or both.”  

Rep. Sneed said he is in favor of the addition of Sec. 2-10 and noted he would like to see a minimum mandatory sentence.  “We have to get the message across if you’re harboring them, then you’re doing wrong and you’ve got to stop.  At least let them know we aren’t going to tolerate that anymore.”