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.