Tribal Banishment - A Spiritual Death Penalty?

On September 8, 2008, U.S. District Court Judge James Robart ruled that nine members of the Snoqualmie Tribe in Washington state were denied due process when the Tribal Council voted to banish them from the Tribe. The banished members filed suit alleging that their civil rights were violated by the banishment, and filed a Writ of Habeas Corpus charging a violation of the Indian Civil Rights Act. The dispute began when the nine members, who include five prior members of the Tribal Council, were accused of running an illegal “shadow government” as well as other violations of the Tribal Code. After months of internal conflict, the Council members were ousted, a new Council was elected, and the nine individuals were banished from the Tribe. The Tribe has argued that the dispute is a sovereign Tribal matter and does not belong in the federal courts; a further hearing is expected before the end of the year.

Banishment appears to be increasing in frequency across the country, as Tribes (many with limited or no Tribal Court systems) grapple with how to impose appropriate discipline upon members who deviate from accepted norms of behavior.  Although the rules and implications of banishment are Tribe-specific, it commonly represents a complete severing of the individual’s relationship with the Tribe, and a loss of recognition as a member thereof.  In effect, a person’s cultural, spiritual, and familial heritage is stripped away, and the bonds to the nation of their birth terminated. This method of punishment is unique within the borders of the U.S..  Under the laws of the United States, penalties for even the most serious crimes (including high treason) do not include revocation of citizenship status for natural-born citizens.  While some benefits of citizenship (e.g. the right to vote) may be revoked from convicted felons, one’s basic status as a citizen of the nation remains unaffected, and even a person sentenced to death will still “die an American”.  Indeed, under Western paradigms of justice it is almost inconceivable that a natural-born person could be told by the legal system: “You cannot call yourself French” or “You’re no longer Irish”.

As illustrated by the Snoqualmie case, there is sometimes a political component to the spectre of banishment.  When a power rivalry within a Tribe becomes too great, it can spawn the idea of “solving the problem” by simply removing a faction from the nation altogether.  Aside from the questions of fairness and cultural heritage, political banishments also seem likely to foment future unrest for the Tribe.  If people are told by Tribal leaders that they are no longer members of the nation, what other means do they have of regaining their heritage than the removal of those who issued the banishment order?  When a power struggle becomes a struggle for one’s very identity as a human being, it should be expected that the intensity and longevity of the fight will increase significantly.

Another issue that remains unclear is the extent to which banishment affects future generations of Native families. If a father is banished from the Tribe, are the “sins” that prompted the banishment also visited upon his sons?  What of the unborn progeny of the banished – are they condemned to enter the world without a Tribal identity?  Considering how mightily Tribes and their members have struggled through centuries to maintain their heritage against the onslaught of outside forces such as assimilation, boarding schools, and cultural genocide, a troubling irony is present in the contemporary utilization of banishment by Tribes themselves.

The legal, genealogical, cultural, and economic implications of banishment for the descendants of affected Native Americans are gigantic and far-reaching, and are deserving of careful analysis. A fine starting point is found in the article: Banishment as Cultural Justice in Contemporary Tribal Legal Systems by Patrice H. Kunesh of the University of South Dakota, published in the New Mexico Law Review in 2007.

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Native American Legal Update - May 1, 2009 11:44 AM
In a legal first, Tribal members have been victorious in Federal court challenging a Tribal banishment action. On April 30, 2009, the U.S. District Court for the Western District of Washington granted the Petition for a Writ of Habeas Corpus...
Comments (3) Read through and enter the discussion with the form at the end
Michelle L. George- Thomas - December 16, 2008 10:45 AM

You can't use the Civil Rights Act, you need to use the Human Rights Act. This is the same thing that we are working towards, but we need a lawyer. We are at the door of the Department of Justice, they said we need a lawyer to represent us. We have illegal Chiefs here and they have been ripping off the Real Onondagas of our nation, this is why most of our people live in the suburbs of our nation. Please, if you have a lawyer that will represent us please don't hasitate to e-mail us A.S.A.P!!! Thank -you From the Onondagas' in New York State. We hope this information will help you !!

Carolyn Lubenau - December 22, 2008 11:56 PM

We do have an attorney - his name is Rob Roy Smith, he also teaches Indian Law here in Seattle. We are going to trial on January 23, 2009 and we think it will set a precedent. From 1968-1978 (1968 was when the Indian Civil Rights Act was passed) there were 80 Indian Civil Rights Cases heard in the courts at the Federal Government level, they heard everything from voting violations, to other civil rights violations. In 1978, the Supreme court decided the infamous Santa Clara Pueblo vs Martinez case and basically it has been interpreted to say the tribes have sovereign immunity over it's members. From 1978 to 2008 there have only been 3 Indian Civil Rights Cases that have gone to Federal court and none of them have gone to trial or ended in a verdict. Our case is the only case in 30 years to have made it past dismissal - we are hoping it goes to trial and that there will be a verdict on January 23, 2009. If you email me I will keep you up-to-date on the case. I will be working and joining others to continue to fight for an amendment to the Indian Civil Rights Act that makes it illegal to "disenroll" or "banish" tribal members as soon as our trial is over. With a new Department of the Interior administration, I think we will stand a better chance to make a change then we have in the last 30 years.

RENISSA MCLAUGHLIN - February 22, 2016 1:02 PM

I am a member of the Eastern Band of Cherokee Indians. We, like many native communities across the country are in the midst of a drug war. Recently, Councilwoman Teresa McCoy submitted legislation to begin implementing a plan to banish enrolled members with drug charges. Additional legislation was again submitted for the tribe's legal department to be tasked with establishing the framework and the process. We also have a drug court that the current Chief is wanting to shut down. The tribe has only recently improved our treatment facility. Since this "last resort" effort is imminent, I am curious if there exists any real evidence that banishment is working. What I take issue with is as a parent of an addict. Their addiction led to criminal activity. Which would be the case in many situations. There are numerous reports that substantiate that fact. I believe we have leapt to the end, ready to remove our members, without realizing the full ramifications of this endeavor. Further, what does the continued use of banishment of tribal members across the country say about our ability to self-regulate ourselves as sovereign entities.

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