Should Federal Courts Intervene In Tribal Banishments?

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Banished Snoqualmie Tribe Members at Seattle's Federal Courthouse (Seattle Times)

"It's just like death" 

"We were treated like criminals" 

“It’s ripping a big family apart”


These comments from Linda Sweet-Baxter, Carolyn Lubenau, and Anita Christansen arose from a recent court hearing on the banishment orders issued by the Snoqualmie Tribe, affecting nine (now “former”) Tribal members. Along with the substantive and cultural issues involved in the banishments, another point of interest was the venue for the hearing – the Federal Court for the Western District of Washington.

The banished members brought legal action in federal court under the Indian Civil Rights Act, alleging the leadership of the Snoqualmie Tribe denied them their right of due process, including adequate notice and an opportunity to speak on their own behalf. The challenges facing the Court went beyond the legal principles at issue, as the non-Native judge, court reporter, and lawyers struggled throughout the hearing to pronounce words in the Tribe’s Lushootseed language.

While federal courts are well-equipped to deal with issues of Constitutional, federal, and even state law, their ability to deal effectively with the political, cultural, and familial complexities of Tribal banishment cases is a significant concern. On a more fundamental level, there is a question of sovereignty involved in reviewing a Tribe’s decision regarding who is and is not one of its members. With the increasing use by Tribes of banishment as a method of criminal (and sometimes political) punishment, legal scholars and advocates must analyze and establish the appropriate boundaries between federal protection under ICRA and a Tribe’s inherent jurisdiction over its membership.
 

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