By ROBERT JUMPER
One Feather Editor
The ability to banish or exclude people from our lands “is an inherent and essential part of Tribal sovereignty. It is indispensable to the Tribe’s autonomy and self-governance.” Sounds serious to our government.
According to Code, people who are banished have threatened the “integrity and law and order on Tribal lands or the welfare of its members.” It is portrayed as so serious that it can be executed on, not just individuals, but businesses that “threaten the health, safety or welfare of tribal members or Tribal natural resources due to spills, accidents, illegal dumping, or other unauthorized releases of hazardous materials into the environment.”
With every proposed banishment, a resolution is put forward to Tribal Council. In those resolutions, there is boilerplate or standard language that is inserted into each, supposedly reflecting the language that is in the Cherokee Code. The resolutions most recently submitted to Tribal Council contained, “Tribal Council has good reason to believe that he is a threat to the integrity, law, and order of EBCI lands and the welfare of the members of the Tribe.”
To be considered for exclusion by the Tribal Council, one does not have to be convicted of a crime. Exclusion is a political act, not a judicial act. In the case of persons who are not enrolled members of the Eastern Band of Cherokee Indians, who for the most part, cannot be prosecuted in our courts and may escape the scrutiny of other jurisdictions because the law enforcement and courts in the other jurisdictions may either not think the infraction is important enough or look upon the infraction as “an Indian matter”, exclusion may be the only tool available to our government to deal with egregious and repeated threats to our community. And while the Tribal Council listens to evidence to decide the fate of a person up for banishment, it is purely in their purview to decide a person’s status based on their interpretation of the evidence presented to them. The Code only binds the Council to determine if, in their opinion, the person is a threat based on the definition provided by the Code.
“Threat” doesn’t sound like a serious word until you attach some of the criteria the Code puts forth as banishment-level behavior; topics like “crimes against children”, violence against women, “drug trafficking”, and violence against elders.
So, nothing personal, but I think we should, as a community, take banishment a little bit more seriously. And when something is serious, it is serious regardless of race or gender. Before October 2022, banishment for enrolled members also meant that they lost their membership in the Tribe. There was a reluctance to banish any enrolled member if it meant that they lost their membership in the Tribe (possibly because people get citizenship and race confused). But that language was revised in 2022. Instead of saying “shall be removed from the membership roll”, it now says “may be removed from the membership roll”; so that now a tribal member may be excluded without being disenrolled. I mean, does it really matter, when a child on our Qualla Boundary is being coerced into getting hooked on deadly, debilitating drugs, whether the drug dealer, trafficker, is a tribal member or a non-Indian? I can tell you quickly that if it were my loved one who was dealt death by addiction, I would not care what the race or gender of the person who sold it was. And if someone physically or sexually abused a son, daughter, niece, nephew, etc., I would want that person to be punished, including banishment, even if they were kin of mine.
Slavery still exists in practice. It now manifests itself in the form of human trafficking. Kidnapping or coercing people, many times young people, into a life of servitude, including prostitution. Should a tribal member who is trafficking people, possibly other tribal members, into modern slavery be treated less severely than someone who is not?
In October 2022, a piece of Section 2 of the Cherokee Code, the section that deals with exclusion powers, was removed. Prior to removal, there was a provision in the law that required the Court to report to the Tribal Council every six months with a list of individuals and their crimes who were convicted through Cherokee Court who committed acts that would be of a level to be considered for exclusion. This provision had been in law since 2007. I spoke to officials who stated that they were not sure when this practice had ever been followed. One may only conjecture that the reason this report didn’t come to Tribal Council is that the Cherokee Court only processes tribal members. It is also important to note that the Court is not one of the six persons who, per the Code, may request an exclusion action (Principal Chief, Vice Chief, Tribal Council member, Chief of Police, Tribal Prosecutor, Attorney General). Now that the Tribal Council may have more of a comfort level in addressing tribal members who chose to commit banishment or exclusion level crimes, it may be time to reintroduce and adhere to the old provision of delivering the Court list of those people and crimes to the Tribal Council for their consideration.
In all the resolutions for banishment that I have reviewed, each one includes the same language; “Whereas (insert name here) is not a member of the Eastern Band of Cherokee Indians”. It is obvious that the implication is, from that language, the person would not be facing banishment, regardless of their crime or threat to the community, if they were a tribal member. Other phrases like “22-year-old white female” and “a Black male” point to emphasizing a distinction based on race as to whether a person should be considered for exclusion. I understand that some of that language may be an effort to include a physical description in the resolution to help with identification once the person is banished or excluded, but it appears to be and may be perceived as being there for another purpose. It looks like a picture or description could be included as an addendum to a resolution. The community desperately needs photos to be included with the exclusion ruling so that a face can be put with the name. At a work session prior to the Tribal Council vote on the October 2022 legislation, I asked that the language saying, “The Exclusion Registry should contain a photograph and identifying information” be amended to say, “shall contain”, but the amendment wasn’t made.
I was discussing the reluctance heard in Tribal Council to banish enrolled members with a colleague when he told me to look up the Cheyenne River Sioux’s stance on tribal member banishments. I did. Here is an excerpt from an article by Ross DuBray in the West River Eagle (2017).
“It has been almost two years since the Cheyenne River Sioux Tribe (CRST) Tribal Council passed banning tribal members and other individuals who have been convicted of dealing methamphetamine (meth) from the reservation in an effort to crack down on the meth epidemic rampant on Cheyenne River. Although the action was applauded, many were skeptical that it would actually happen. Fast forward 21 months, and so far 10 banishment orders have been signed and delivered to convicted offenders. According to CRST Law Enforcement officials, the banishment orders are hand delivered to the individuals at their sentencing hearing. The banishments won’t go into effect until offenders are released from prison. CRST Attorney General explained that banishments are for life but after five years offenders can appeal to the tribal council for reconsideration if they can show that they have been rehabilitated and are being productive citizens.”
Our law has stated for a long time (at least 2007) that tribal members who demonstrate their lack of love for their community by selling poison to our people and abusing women, children, and elders, and who participate in human trafficking and modern slavery should be considered under the law with any other person who would do those things to our loved ones. And now that disenrollment can be off the table if the Tribal Council chooses it to be so, I hope our leaders will step up to protect us from those who would not only threaten the welfare of the community but also have no regard for the lives of children, women, and elders, even if those perpetrators happen to be tribal members. A law that our government will not enforce is no law at all.
I understand the reluctance to exclude those who share our blood and relationship. Who enjoys separating from family? But family is more than just flesh and blood. It is caring and concern for your family members. It is making decisions that are in the best interest of all and not for self-gratification. We must know that our individual actions impact more than just ourselves. A drug dealer’s goal is not the health and well-being of the Cherokee family or community. It is a personal desire for personal gain to the detriment of the family, even to the point of not caring about the destruction and death of our family members in the Tribe. And when one of our members demonstrates through committing offenses like child or elder abuse, or drug and human trafficking, it is time to consider all the remedies that will mitigate that threat to our family. And the possibility of banishment will hopefully cause our members to consider their actions before they do something that might separate them from Tribal life and land.
The Cherokee Indian Police Department is reviewing its policies and one of those includes the Code change that took effect in October 2022. The CIPD is considering how they might implement Section 2-13 which authorizes the CIPD to “establish a system of monetary rewards to be distributed to members of the public to encourage the sharing of information by the public which leads to the arrest and conviction of excluded persons who are found to be on Tribal trust lands in violation of a valid exclusion resolution or writ or those who harbor excluded persons.” Hopefully, this will be a new tool in combating the incidences of crime against our members and community.
Everything depends on what we think is serious and not having qualified answers to the question. To me, elder and child abuse are serious regardless of the race, age, or gender of the offender. Drug trafficking is serious to me, regardless of the race, age, or gender of the offender. Human trafficking is serious to me, regardless of the race, age, or gender of the offender. We should expect, and demand equal justice for all, whether in the tribal courts or in the tribal council chambers. It is that serious.
