COMMENTARY: Is exclusion applied equally under law?

by Jul 29, 2022OPINIONS0 comments


One Feather Editor


A powerful tribal law and sovereign right of the Eastern Band of the Cherokee Indians (EBCI) is that of exclusion, more commonly referred to as banishment. More forceful than simple trespassing, an exclusion may include the halt of the ability to conduct any business, personal or commercial, with the tribe. It is so serious that a second violation of a banishment could precipitate a federal charge. Think being exiled from a country.

As we have discussed before, the acts that rise to the level of exclusion are pretty scary. In one of the most recent banishments, the Tribe stated that the individual was and is “a threat to the integrity, law, and order of EBCI lands and the welfare of the members of the Tribe”. The same type of language might be applied to a terrorist or traitor; someone who committed acts of treason upon our tribal nation.

Since 2000, there have been 145 people excluded from tribal lands and life. As far as we can determine, none of those have been enrolled members of the Eastern Cherokee people. That’s 6.7 people on average for the 22 years that the law has been in force.

One interesting statistic is that 41 of the 145 banishments, or 28 percent of all banishments approved by Tribal Council, where done in 2021 (12) and 2022 (29). And reporting only covers half of this calendar year. There are another six months of potential banishments before we have a full tally of 2022.

Many of the banishments and banishment candidates are drug traffickers. Some of the commentary that comes from Tribal Council sessions and community discussion brand these individuals as the worst of the worst, and for good reason. Unlike the drug user, who is sniffing, injecting, or otherwise imbibing drugs to their personal detriment, a trafficker profiteers via the addiction of others. He or she sells death in the form of illegal drugs that may cause immediate cessation of life, a prolonged spiral downward toward mental and physical destruction, and the heartbreak of friends and family of the user. They exhibit the lack of conscience of a sociopath whose only concern is getting what they want without concern as to who or what they trample to get it. I agree with many that drug trafficking is legitimately an offense that should be grounds for exile from our lands and people.

There are certainly other offenses that could land someone before Council in a banishment hearing, but we will stick with one example for the purpose of clear discussion of issue of equity, because this Code identifies this specifically that might apply to tribal members being considered for banishment. Just a quick sidenote, Tribal Council may banish anyone for any reason. This action (exclusion) is recognized by the court in our tribal nation, but the action itself is a political decision. It does not require someone to have committed a crime. It only requires that the Tribal Council determine that someone, in their collective opinion is “a threat to the integrity, law, and order of EBCI lands and the welfare of the members of the Tribe”. This is particularly helpful in the exclusion process when it comes to persons who are not members of our Tribe, because, well, in many cases, we have no legal ability to prosecute them.

One of the points that becomes community debate and disagreement is a provision that was voted into law by Tribal Council in March 2020. Ordinance 124 added language to Code Section 2-6 that states, “If an enrolled Tribal member is permanently excluded from Cherokee trust lands, then the member’s name shall be removed from the membership roll of the Tribe and all privileges pertaining thereto shall immediately be suspended.”

Some community members draw the line at disenrollment. Some have even referred to disenrollment as taking away a member’s race. Not having a constitution that clearly defines us as citizens verses having membership in a group is part of what causes confusion. Our dependence on blood quantum for membership identity further confuses the issue of disenrollment.

One of the interesting things you find in going over the banishment list is the lack of tribal member banishments. Reviewing the list would cause an assumption that the only people in the last 22 years to have committed crimes against the Tribe rising to the level of banishment consideration are those who are not members of our Tribe. Just using the example of drug trafficking, I do not believe, with the level of drug-related arrests of tribal members in the Cherokee Indian Police Department arrest report, that no tribal member has been caught and convicted of trafficking. It is simply not logical. I guess you could say I have a reasonable doubt.

I made an inquiry to the Attorney General and to the Chief Justice of our Tribe regarding compliance with Code Section 2-8, which says, “The Clerk of Cherokee Court shall semiannually provide Tribal Council with a list of all persons convicted of crimes during the preceding six months in which banishment is provided by statute.”

I am not sure if I will receive a response by press time, but the One Feather has not seen a list like this in public sessions of Tribal Council. Presumedly, the Tribal Council would have the names of everyone, enrolled and non-enrolled, who, for example was convicted of drug trafficking since this section was amended in 2007 and, in fact, the law states that the list should include all since 2000. We should be seeing these lists, as a community and the media charged with informing the community, in a public release, assuming that they are being created and delivered to Tribal Council per Cherokee Code.

I know that banishment of tribal members resulting in disenrollment is a very hotly contested, emotional issue. Even if you are not taking away their racial identity, you are certainly taking away their membership, a portion of their heritage, and potentially all the benefits that come from being a member of the Eastern Band of Cherokee Indians.

However, remember what we are saying about drug trafficking. Some describe drug dealers as the lowest of the low. Selling, sometimes giving drugs to youth, hooking them on dangerous, illegal, and ultimately deadly drugs, then when they are hooked on the substances to the point of being willing to rob their families and steal from neighbors to get the money to buy the drugs, they emotionally and financially exhaust these drug users until death or rehabilitation ends it.

I was speaking to a coworker about this issue the other day and he said that a tribal member who would deal drugs on the Boundary was to him, even worse than someone who came in from the outside to do it, because that drug dealing tribal member was literally killing his own people. I tend to agree. And surely the tribal member who decides to deal drugs knows that they might face banishment and disenrollment if they choose to go down that road. Then again, since there doesn’t seem to have been any enrolled members of our Tribe that have been brought before the Tribal Council to be considered for banishment or at least none have been banished by Tribal Council according to the list, maybe they feel emboldened to continue trafficking.

Cherokee Code Section 14-95.9c states, “No person convicted under this section (drug trafficking) shall be allowed to enter the territory of the Eastern Band of Cherokee Indians until permitted by Tribal Council. Prior to release from custody, any person convicted of an offense under this section, shall receive a hearing before tribal council to determine the term, if any, of exclusion.”

Any person.  It doesn’t say, “any non-enrolled member” or “any person except a tribal member”. In fact, since our law mostly applies to our people, the probable intent of the law was to specify actions to take if our people commit drug trafficking. It is the only way it makes sense that they added the language about disenrollment. Non-enrolled members have no concern about disenrollment.

For several months, a proposed ordinance change to the banishment sections of the Code has been tabled for a work session. Hopefully, the Tribal Council will take up this issue soon and find solutions to the questions concerning banishment. In addition to the question of who gets banished and whether they should be disenrolled, is the subject of enforcement. Currently, the tribe lacks the infrastructure needed to enforce banishment in a meaningful way.