COMMENTARY: You are banished…or are you?

by Aug 6, 2022OPINIONS0 comments


One Feather Editor


“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.”

The lines above are from our own Cherokee Code [Section 2-1 (e)]. Section 2 of the Code deals with the process of exclusion or banishment. It codifies the power of the Tribal Council to ban, up to permanent removal, a person, any person, from coming onto Cherokee lands. As we have discussed before, this law may be applied to enrolled members of the Tribe and those who are not.

It has taken years to reconstitute the banishment list; 145 (soon to be more) individuals that the Tribal Council has indicated are a threat to the Tribe’s natural, economic, and/or cultural resources, and/or the health and safety of the Principal People. That could be a general concern from an individual who is misusing or abusing our community through theft or destruction, or it could be someone who has harmed or has been determined to be likely to harm a specific enrolled member of the Tribe. Since this is a political action and not a criminal one, the Tribal Council has broad power regarding banishment.

To date, banishment votes in Tribal Council (to be banished only requires a simple majority of the weighted vote to exile someone from the Qualla Boundary) have rarely been anything but unanimous votes. It would take some extraordinary circumstances for an elected Tribal official to vote against the banishment of someone (as long as they are not enrolled) who is accused of hurting or endangering the Tribe or a Tribal member. And, to date, no Tribal member has been exiled from Tribal lands, even though it is almost assured that some Tribal members have engaged in behavior that has gotten non-Tribal members sent off the Qualla Boundary permanently.

As we discussed in a previous commentary, getting banned from the Boundary is a big deal. The word “banishment” conjures up images of medieval kings on thrones passing judgement on someone who might have committed an offense or, more likely, offended the king personally.

From, “exile and banishment, prolonged absence from one’s country imposed by vested authority as a punitive measure. It most likely originated among early civilizations from the practice of designating an offender an outcast and depriving him of the comfort and protection of his group. Exile was practiced by the Greeks chiefly in cases of homicide, although ostracism was a form of exile imposed for political reasons. In Rome, exile arose as a means of circumventing the death penalty.”

One of the more famous cases of exile or banishment was Ferdinand and Imelda Marcos of the Philippines. Reuters reported that “When she (Imelda) and her family fled Manila in 1986 as protesters filled the streets and stormed the presidential palace, they took with them gold, jewelry, and 22 crates of cash.” Yes, even government officials are potentially subject to banishment.

Humor aside, banishment from our Tribal lands may have significant consequences. If you are invested in the community financially and/or emotionally, being told you no longer are permitted to be on the Boundary could be devastating, potentially separating a person from an established way of life.

But there is a catch. For a banishment to have the effect intended by the Code, the Tribe must have the infrastructure needed to enforce a banishment.

So, you are banished. Don’t get upset. It is a hypothetical. Hypothetically, you have been told by our Tribe that you are a threat to our property and people. Tribal Council has given you your walking papers.

As we have previously discussed, banishment results from what is deemed a threat to the Tribe, behavior akin to treason toward a people, our people. This can be and often is as serious as drug or human trafficking. The individuals brought before Tribal Council for banishment have done things that have gotten the attention of Tribal officials in a very negative way.

Back to the hypothetical. You have been informed by law enforcement that a Tribal Council resolution has been passed to exile you from Tribal lands and you pack your things and set out for the border. Or you may already be outside the Boundary because of a temporary or emergency banishment. In any case, you know you are not to come back. And if you are an ethical person, you will honor the direction of Tribal Council and the Tribe in that resolution. There will be no need for enforcement.

Except that you were banished from Tribal lands because of extremely unethical behavior. Being unanimously voted off the Boundary is a good indicator that there is not a level of trust that may be applied to you. So, the Tribe must have a good plan to ensure that banishment says what it means and means what it says.

And that is the issue. Of the decades that the One Feather has been involved in working through the banishment issue, we found that there was little or no interdepartmental sharing of the banishment list, different departments having partial lists, no central repository for the list, no policies, or procedures for sharing of the list with key stakeholders like service providers and rental properties. No directives or instructions to the community to be aware of the people on the list and how to report a sighting of those who violate the order from Tribal Council to be banished. There is no directive in law for the executive or enforcement arm of the government to provide the tools needed not only to identify and report those who violate an exclusion order. Little to no infrastructure.

Oddly, there is provision in Tribal law to address those who harbor and aid anyone who comes back to the Boundary after a banishment. If you get caught knowingly giving assistance to a “banishee”, the banisher will impose a mandatory seven day stay in our jail with a possibility of up to a six month stay and up to a $5000 fine. According to lawyers I have inquired to, the key word is knowingly.

The Code states that “anyone who harbors an excluded person on Cherokee Trust Lands shall be guilty of a crime.” Apparently, a defense in law is available for folks to say, “yes, I harbored them, but I didn’t know they were banished”, which based on the way our government provides information on banishments, gives the accused all kinds of ways to get out of a seven-day jail staycation. I think they call it “plausible deniability.”

In trying to get information on this issue to bring to you, I found that there have been some people, recently, who have been charged with aiding banished people. A few. But it is difficult for me to assume that this is something that is a priority for law enforcement and would probably take more investigation than is practical for them. Why? Because the Tribe has not thought through and implemented a way for even the police to identify those excluded from our Boundary.

Example: Law enforcement takes a lunch break and walks into one of our local eateries. As a good and responsible officer, he is scanning the crowd in the continuation of his duties to protect and serve. He has taken the unusual step of familiarizing himself with the banishment list. But the banishment list contains little to physically identify a person who has been excluded from Tribal lands. So, short of recognizing them from the charges and conviction that got them banished, he would have to check the I.D. of everyone in the restaurant. Further the restaurant staff would not be able to deny service or report an excluded person on their premises for the same reason, although they might have a better shot than the officer since they get to look at the customers’ bank cards before they head out the door.

Landlords, utility providers, and other retailers are not prompted to check the banishment list prior to renting or providing services. Furthermore, we, as citizens of the tribal community, only have access to what is available through the banishment list, which is only readily available through the Cherokee One Feather website. We provide as much as we can under our current policies and procedures, which is the ratified resolution concerning the person banished. Rarely if ever does that contain a physical description of the offender that is excluded.

I urge our Tribal Council to mandate that a photo or physical description be attached to all resolutions for banishment and that information become a matter of public record once the resolution is ratified. That would at least give the community a way to identify someone who has been deemed a threat to their land and people. Until we make banishment a real hinderance to those who are a threat to our community, it is no more than a minor inconvenience to those who chose to exploit and attack the Qualla Boundary and its citizens.