By ROBERT JUMPER
One Feather Editor
During Budget Council on Feb. 1, Tribal Council engaged in a discussion of banishment law. They talked about how hard it would be to banish a tribal member because, in our Cherokee Code, it has been made clear that any tribal member permanently banished by Tribal Council will also be disenrolled. Some have stated that they “just couldn’t bring themselves to remove someone from membership in the Tribe.”
In 1996, Ordinance 271 was passed by Tribal Council and signed by then- Principal Chief Joyce Dugan. It empowered the Tribal Council to not only banish tribal members but added a “be it further ordained” to the legislation. “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 indefinitely. The removal of the person’s name from the roll shall be submitted to the Superintendent of the Eastern Cherokee Agency for approval by the Secretary of the Interior or his authorized representative.”
There are real potential consequences for elected officials to banishing tribal members and removing them from the roll. Many of our tribal members have family and friends who vote in large voting blocks in communities, and should a well-connected member be brought before the leadership for banishment, the pressure could be great to vote one way or the other to keep a seat as opposed to looking at the behavior of the person before them facing banishment. And regardless of the decision of those tribal leaders tasked with making the decision on enrollment, a perception of the community could be that the decision was politically motivated.
And because of our relatively small population of approximately 16,000 members, there is a good chance that our leadership might face a situation where the entirety of the political body would know or be related to a tribal member that they may have to decide must be banished and disenrolled. Beyond being awkward, it would certainly pose an ethical dilemma for our leadership.
There are six persons or entities, according to Code, who have the power to request an “exclusion action”. They are as follows: the Principal Chief, the Vice Chief, members of Tribal Council, the Chief of the Cherokee Police Department, the Tribal Prosecutor, and the Attorney General.
In Cherokee Code, Section 2 subsection 8, it looks like there was an added step to the process that would require the Clerk of Cherokee Court to, every six months, provide the Tribal Council with “a list of all the persons convicted of crimes during the preceding six months I which banishment is provided for by statute.” I do not know if that list has been provided to Tribal Council in the last 10 years, but it surely has not been made public and I have not seen it addressed on any session of Tribal Council.
Recently, the banishments have been considered by Tribal Council through individual resolutions at the end of Budget Council. These individual resolutions do not represent all people with charges that would qualify for consideration based on the charges from the previous six months or even one month. They specifically have not included any enrolled members who have committed crimes that would warrant banishment consideration.
Additionally, where is the accountability for those harboring a banished person? A few examples of banished people renting on Boundary were brought up during the most recent Budget Council session. There was no mention of any charges filed for the person renting the space to the banished persons.
Cherokee Code Section 2-10 states, “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 $5000, or both, but shall be sentenced to a mandatory minimum term of not less than seven days.”
In March 2000, government chose to strengthen the language of the law to say that “Aiding the lawful obtaining of services by an excluded person shall be punishable by a fine of $5000 and by imprisonment for a term not to exceed one year, and by exclusion (banishment) for a term equal to the exclusion term originally imposed upon the banished person for which aid, or assistance was attempted or secured.”
So, it is possible to get banished from tribal lands if you aid or attempt to aid, including renting or giving living quarters to a banished individual. I have put in a request to our government for some data, including if there is any record of a tribal member being fined or jailed for renting or leasing living space to people who have been banished. No official response to that inquiry has been received, but one off the record response was that two people had recently been charged with harboring, one had been convicted, the other case is pending. Both were recent, 2020 and 2021 respectively.
I know the “justification” will be that the person said they didn’t know that the individual was on the banishment list but is ignorance of a law an excuse for violating it? If I speed through town and an officer pulls me over, I can’t get a pass on a ticket by saying I didn’t know the speed limit. There is a consequence outlined in law for my action, not my intent. I feel the same is true for the harboring of banished persons. It is up to the person renting the property to check the banishment list and avoid breaking the law. In theory, our tribe does not take banishing people lightly. In reality, we should practice what we preach.
I have been having discussions with those schooled in law and they tell me that it is not that easy. That things like intent and position come into play, especially when it comes to aiding and abetting a banished person. But there is a path to a solution for this situation. We will never find it until we start to seek it diligently.
What if banishment were an automatic consequence instead of being subject to a case-by-case review of Tribal Council and Executive? What if when a person is convicted of a crime in our Code that is subject to banishment, that our law also said that banishment is mandatory for that crime? What if a person, tribal member or not, traffics drugs on the Boundary and is convicted of it in Court and an automatic penalty of banishment is imposed? What if a person, tribal member or not, molests a child on the Boundary and is convicted of it in Court and a mandatory, automatic banishment is imposed?
The Code language set forth in 1996 by our leadership acknowledged that crimes against the people of the nation of the Eastern Band of Cherokee are serious, whether they are committed by outsiders or by enrolled members of our tribe. No person should feel safe in committing heinous crimes against our people because they are a tribal member. In fact, one colleague of mind is of the opinion that those who are of our blood have an even higher accountability to the safety and security of our people than someone who is not a member. A tribal member who chooses to traffic drugs to our children or who molests them must not have any care or concern for their membership in this community. Is it so important to keep feelings from being hurt that we are going to allow that element to remain in our society? More is the pity for us if we do.
