By ROBERT JUMPER
Tutiyi (Snowbird) and Clyde, N.C.
“The Tribal Council shall have the power to exclude enrolled Tribal members when necessary to protect the integrity and law and order on Tribal lands and territory or the welfare of its members.” – Cherokee Code Section 2-1(a)
“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.” – Cherokee Code Section 2-1(e)
Have you ever really looked at an exclusion resolution? Not just the banishment list to see who has been given the boot from our tribal lands, but also looked at the “therefore” section that is supposed to be the justification for excluding an individual or entity?
We publish each resolution of exclusion for everyone excluded once the Ugvwiyuhi (Principal Chief) has ratified it into law. Those may be viewed by anyone in the world by going to www.theonefeather.com and accessing the banishment list.
I pulled up the most recent resolution, and in the “whereas” portion, it says this, “Whereas Krista Oxendine (Date of Birth: 01/18/1972) is not a member of the Eastern Band of Cherokee Indians, but is said to be residing in and around the Qualla Boundary; and…”
The implication in the format of this document is that the race or citizenship of the individual plays a factor in determining whether the person should be excluded from tribal lands. This is boilerplate language that you will find in all the most recently approved resolutions for banishment. I went back as far as January 2008, to the Isaac Ishmail Rivers banishment, and the same language appears in this resolution.
Banishment of tribal members has long been a discussion among our people. For many years, the Dinilawigi (Tribal Council) struggled with the way the law was written, because drafted into the Cherokee Code was a provision that any tribal member excluded from our lands would automatically be removed from the tribal rolls. The argument was that removing a person from the rolls would impact their children and grandchildren’s ability to remain on the rolls or to receive benefits. The Dinilawigi also worried about the ethical implications of removing someone’s race or citizenship.
In 2022, legislation was passed that did away with the provision that caused the Tribal Court to issue a list to the Dinilawigi of all individuals, regardless of race or citizenship, who had committed offenses that would qualify for banishment. The offenses listed in the Code were and are drug and sex crimes. I had inquired from the Chief Justice of the Tribal Court at the time about whether the list had ever been provided, and the response was simply that he didn’t think that it had ever been done. I could only find one record of a banishment offense list ever being presented to the Dinilawigi from the Court. So, instead of enforcing that part of the Code, the decision was made to alter the law to eliminate that requirement.
I believe that the removal of that requirement for the Court to report offenses and offenders who are convicted of crimes that meet the criteria of exclusion, regardless of race or citizenship, was a mistake that should be corrected. That list should be presented in open Dinilawigi sessions for the public to hear both the names and the decision of the Council on the exclusion of those individuals.
Also in 2022, the language that tied banishment to disenrollment was removed. It is no longer a requirement to remove someone from the tribal rolls if they are banished. To be clear, a tribal member can be banished without taking them off the tribal rolls. Whether you call it citizenship or race, those are unaffected by banishment unless the Dinilawigi chooses to act with that specific additional action.
Still, since 2022, 79 individuals have been banished from tribal lands. None have been members of the Eastern Band of Cherokee Indians. In fact, of the ~192 people who have been banished since 2000, none have been members of the EBCI.
Just in case you think that “Wow, we must be some kind of good, ethical, peaceful people” because you don’t see one of us on that list, I would ask you to look at the most recent Domestic Violence Court docket. You will find individual tribal members going to trial for up to 40 counts of violence against children, against elders, and various other connected offenses. That’s at least one tribal member with 40 charges. In our Criminal Court, you will see traffickers and sexual assault cases. In last month’s Court Disposition Report (you can find those for yourself at the website in the tribal reporting section), one EBCI member was found guilty of drug trafficking, another EBCI member was found guilty of reckless endangerment, violation of the Elder and Vulnerable Adult Protection Criminal Code, more than one EBCI members found guilty of driving while impaired, another guilty of reckless endangerment, one EBCI member convicted of contributing to the delinquency of a minor, undiscipline, neglect, or abuse of minors, one EBCI member guilty of assault on law enforcement, probation, or parole officer, 1 tribal member guilty of elder abuse and neglect, second degree child abuse, and second degree trespass, another EBCI member convicted of drug trafficking, and yet another EBCI member convicted of domestic violence and dating violence. This is just a synopsis of convictions for one month (April).
These are not just arrests. These are court convictions. Now you might argue that some of these offenses don’t fit the criteria explained in the Code, but the criteria is a guideline, I imagine, for the courts and law enforcement. Because banishment is a political action and not a judicial action, it only takes a majority vote of the Dinilawigi that an individual meets the standard of threatening “the Tribe’s natural, economic, and cultural resources, and to protect the health, safety, and welfare of Tribal members”. If the Dinilawigi and the Ugvwiyuhi concur as to the individual’s threat to our society and they pass a banishment resolution, that person is banished regardless of any court charges or lack thereof.
Don’t we have an ethical obligation to treat all people equally and fairly? And what about those tribal members who perpetrate violence on their people? Is that not more egregious than an outsider doing it? And what does it say to us as a community and a people that we are willing to banish those who commit crimes against our people, only if they are not tribal members? For whose sake do we allow, for example, tribal members who are convicted of drug trafficking to remain on the Boundary? Certainly not the victims, the victims’ families, or the community at large.
There have been at least two instances of murdered indigenous peoples, EBCI members, in our community that were perpetrated by fellow tribal members. We, as a people, would never ignore an outsider who took or abused our children, our elders, or our land. It just doesn’t make sense to me that we don’t address all abuse of our children, elders, and our land with equal force. While the Court will take some of the threats out of our community, it will not take all who threaten us away. Banishment or exclusion is a statement that we will not tolerate the presence of people who come to harm us, and that should mean anyone of any race or citizenship, including our own.
