Cherokee Nation Banishes African-American Members

In a move with significant legal and social implications, the current leadership of the Cherokee Nation has stated that it will banish 2,800 African Americans from its citizenship rolls. BIA Assistant Secretary Larry Echo Hawk has warned that the results of the September 24 Cherokee election for Principal Chief will not be recognized by the U.S. government if the ousted members, known historically as "Cherokee Freedmen," are not allowed to vote.

"The Cherokee Nation will not be governed by the BIA," Joe Crittenden, the Nation's acting Principal Chief, said in a statement responding to the U.S. Bureau of Indian Affairs.

The dispute stems from historical events that pre-date the Civil War. Certain native Cherokee owned slaves who worked on their plantations in the Southeast US, where the Cherokee Nation’s original ancestral homelands were located. By the 1830s, most of the Nation was forced to relocate to present-day Oklahoma via the infamous Trail of Tears, and some members brought their slaves with them. The current-day “Cherokee Freedmen” are descendants of those slaves.

Following the Civil War, a treaty was signed in 1866 guaranteeing tribal citizenship for the freed slaves. The U.S. government asserts that the 1866 treaty with the Cherokee Nation guaranteed that the slaves were tribal citizens, whether or not they had a native Cherokee blood relation.

The African American members of the Cherokee Nation lost their tribal citizenship last month when the Cherokee Supreme Court voted to support the right of tribal members to change the Nation's constitution on citizenship matters. The change meant that Cherokee Freedmen who could not demonstrate a native Cherokee blood relation were no longer citizens, making them ineligible to vote in tribal elections or receive benefits.

In addition to pressure from the BIA, the U.S. Department of Housing and Urban Development is withholding a $33 million disbursement to the Nation while the dispute remains unresolved. A federal lawsuit has been filed in Washington DC seeking to restore voting rights for the Cherokee Freedmen in time for the September 24 election for the Nation’s Principal Chief.

Snoqualmie Members Overturn Banishment In Federal Court

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 filed by nine Snoqualmie Tribe members challenging a banishment imposed by the government of the Snoqualmie Tribe in May last year. A copy of the Findings and Conclusions may be read here.  The Court held that the Tribe's government violated the Petitioners' due process rights under the Indian Civil Rights Act and vacated the full banishment.  As a result, the Petitioners' membership in the Tribe, as well as their benefits, are restored.  The Court also imposed a time restriction on a pre-existing social banishment that prevented the Petitioners from coming onto Tribal land and attending Tribal events. The Court also reduced the open-ended social banishment to 90 days. 

The decision comes after the first trial held in Federal court under the 1968 Indian Civil Rights Act seeking relief from a tribal banishment action. This is the first Federal court decision to overturn a banishment after trial upon a finding of a denial of due process. As previously discussed on this site, banishment is increasingly being employed by various Tribes to deal with disciplinary and other control issues.  The Snoqualmie decision could have profound effects on the way Tribal governments deal with political and criminal issues involving their members, with banishment decisions now being scrutinized in federal courts.

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.