By ROBERT JUMPER
Tutiyi (Snowbird) and Clyde, N.C.
When we started researching the banishment list over a decade ago, the exclusion power outlined in the Code (the Cherokee Code) was being used, but a couple of the directives in it were not being followed. One, there used to be a directive in Code that the Court would, at least every six months, provide a list of offenders who had been convicted of crimes deemed worthy of exclusion according to the Code. Since the list could have only been a list of tribal members of the Eastern Band of Cherokee Indians, when the exclusion law was implemented, very few offenses, if any, could be tried against a non-Indian in Tribal Court. So, there must have been some intent to hold tribal members at least equally accountable for high crimes and threats against the tribe, to include the possibility of exclusion.
When I asked a former Chief Justice about the number of times the list had been submitted to the Dinilawigi (Tribal Council), he stated that he had never heard of that being carried out and really wasn’t familiar with the ordinance. Ultimately, when I pressed the question in 2022, the government’s answer at the time was to remove the requirement to report that information to Dinilawigi.
The second was that the banishment or exclusion list was to be public-facing. When we first started bringing real focus on the issue of banishment in 2014, I started searching for a copy of the banishment list. Since there is Cherokee Code language that says, “It shall be unlawful for any person to harbor, conceal, or give succor to any known excluded person.” (Cherokee Code Section 2-10), I assumed that a list of who might cause me to violate the law (by aiding and abetting them to remain on the Qualla Boundary after being banned) would be very readily available. Well, not so much. I went first to the government programs to ask for a copy. The answers I received ranged from “We don’t have that” to “We may have a partial list we can provide”.
That was the beginning of the One Feather’s push to assemble and publicize a current banishment list. Over time, we have not only organized and published the banishment list, but other tribal programs have also jumped on it and are now sharing the list through their websites and phone apps.
I don’t know if the tribe could compel outside service providers to maintain that database in their applications for services, so that when a banished person applied for, for example, power services on the Qualla Boundary through an electric company, they would be able to alert tribal authorities so that proper issuance of additional charges could be leveraged. Theoretically, if the power company doesn’t alert the tribe in a case like this, that would violate Section 2-10 of the Code.
Here’s the rest of that section of law: “Any person who violates this section shall be guilty of a crime and may be sentenced to a term of imprisonment not to exceed 12 months imprisonment or a fine not to exceed $5000.00 or both. Any person convicted under this section shall be sentenced to serve an active term of imprisonment of at least 30 days, which may not be suspended.”
The word “succor”, in its noun form, means “assistance and support in times of hardship and distress.” In its verb form, it means “give assistance or aid to”.
You must connect the dots a bit with this language, but I take that to mean that if you assist a person in living on the Boundary, you are providing succor. Living in modern society without electric power is a burden. I would judge that providing electrical services at a residence inside the territorial lands of the Eastern Cherokee for someone who had been lawfully banished would qualify as a violation of law. Thus, the need for outside service providers to help the tribe keep people off our land who have been deemed a threat to “the Tribe’s natural, economic, and cultural resources, and to protect the health, safety, and welfare of Tribal members (CC Section 2.1.e).”
The exclusion process, codified in 1994, is like a notice of illegal trespass (my interpretation of the law; you may have your own). Exclusion itself is like an addition to the law through resolution, specifically naming an individual as unwelcome on Eastern Band of Cherokee Indian lands. To be excluded, all that is needed is for the Dinilawigi and Executive Office to believe that a person meets the criteria in Section 2.1.e, and they can lawfully vote to kick a person off the Boundary. Two glaring examples stick out, one involving a person who made malicious and alleged false claims against the heritage of the tribe (I say “alleged” because these claims were never adjudicated), and another who, while not being convicted or reprimanded of any crime or policy violation, was deemed to have done something that would insult or threaten children. No crimes in law. An opinion by a body politic.
I am not saying those applications of the exclusion law were unjust. I am just saying those are examples of how the process is subjective instead of objective. This brings up a touchy (i.e. controversial) subject. The Code clearly intended the use of banishment to include members of the EBCI. There is an entire subsection dedicated to it. Section 2-6 is titled “Enrolled members; permanent exclusion.” It says, “If an enrolled Tribal member is permanently excluded from Cherokee lands, then the member’s name may be removed from the membership roll of the Tribe by resolution of Tribal Council and all privileges pertaining thereto may be suspended indefinitely. If a first-generation descendant is permanently excluded from Cherokee trust lands, Tribal Council may also, by resolution, suspend or revoke the privileges and benefits that the excluded person would otherwise have been eligible to receive as a first-generation descendant.”
In 2022, this language was added or amended to Code. Previously, the language said that if a tribal member was banned, it also meant that they were disenrolled.
Representatives of Dinilawigi debated this issue for years. It was glaringly obvious that they, as a body, did not want to remove someone from the rolls of the tribe, even if those enrolled members were committing offenses and acting in a way that could be interpreted as a threat to “the Tribe’s natural, economic, and cultural resources,” and at threat to “the health, safety, and welfare of Tribal members.” Two people could commit the same crimes against tribal members. For the non-Indian, a resolution for exclusion would be drafted and approved for that person to be banished from tribal lands. The other person, a tribal member, might go through the court system, but would not face banishment from the Dinilawigi.
We keep the exclusion list on the One Feather website current to the last ratification in the exclusion list (https://theonefeather.com/ebci-banishment-list/). I urge you to pull that list up and click on any of the most recent exclusion resolutions and try to find one that doesn’t have this line in the justifications for banishment: “Whereas (name) is not a member of the Eastern Band of Cherokee Indians…” The intent of this line in the resolution seems to be to clarify that we are not attempting to exclude a tribal member. If banishment were being applied based on actions, and giving behaviors equal weight, regardless of membership or affiliation, there would be no need to identify their membership status as a bullet point for exclusion justification.
And that’s the reason that I wanted to remind you of this. If someone is trafficking sex or drugs on the Boundary, as was the case in the most recent exclusion, should it matter what their membership status is to be considered for banishment? In some tribes, they have created their banishment and disenrollment laws specifically to address their own members whose behavior harms their own. They see it as more heinous than if an outsider does it, because they are harming one of their own. So, my question is, why do we, as a tribal community, see it differently here?
