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home : news : news June 24, 2017

6/9/2009 8:26:00 AM
Proposed banishment code moves forward in LdF
Far-reaching language targets tribal members, nonmembers

Richard Moore
Investigative Reporter


A Lakeland Times News Analysis

The leadership of the Lac du Flambeau Band of Lake Superior Chippewa Indians is moving forward this week with a sweeping proposal to allow the tribe, after a hearing and by vote of its membership, to banish members and nonmembers alike from the jurisdiction of the tribe.

Under the recommendation, the tribal council could also banish people without first conducting a hearing or membership referendum by declaring the need for an emergency exclusion.

According to tribal spokeswoman Laura Stoffel, the tribe intended to mail the latest rendition of the code to tribal members yesterday (Monday, June 8). On May 8, the tribe's constitution committee voted to forward to the tribal council a so-called "final version" of its recommendation, which the tribal council had directed it to fashion.

"The constitution committee prepared the code and presented it to tribal council on May 26, 2009," Stoffel told The Lakeland Times in a prepared statement. "The tribal council authorized the tribal secretary to schedule tribal member hearings and a tribal referendum election. Tribal members will be mailed the banishment code and provided with the dates for the two membership hearings, which will be held in June. No confirmed date has been set for the referendum vote."

In the statement, Stoffel said the ordinance would be presented as a public document in its final form if approved in the referendum.

Banishment is not unprecedented in Lac du Flambeau. The tribe in the past has banished three people; the purpose of the new code is to codify and clarify existing grounds, the proposal states.

In general, banishment - a person's expulsion - would occur after a tribal meeting and decided by a referendum vote of tribal members living on the reservation, though the proposal provides significant exceptions to those provisions, such as the emergency exclusion.

While the tribal membership would have the power to enact a normal banishment, only the tribal council could lift it.

This past Friday, both Stoffel and tribal president Carl Edwards stressed that the proposition was still "a work in progress," and said even the version being mailed to members this week may yet undergo revisions; Stoffel referred to it as a "draft" and said the entire proposal could "be tossed out entirely," based on the membership's input.

"Last May the tribal council received a flood of requests from tribal members to move forward on a banishment code," Edwards told The Times. "It will be the membership who will be the ultimate decision-makers on the final code and its passage."

It was late last March that tribal dissidents took over and occupied tribal offices; they reached a plea deal in Vilas County last week.

Not all tribal leaders agreed with Edwards' assessment of a groundswell for banishment.

In an interview with Times' reporter Samantha Hernandez, tribal council member William Beson said the only people he knew who had requested the code were some former and current council members. 

Beson told Hernandez he had read the proposed code and didn't believe it would pass, nor did he support it. He likened such rules as those that would exist in a "dictatorship regime."

Vague wording

Whether or not that is the case, the regulation in its current form does use sweeping and broad language, which would endow the tribe, and especially the tribal council, with extensive authority.

And, despite official protestations that the proposal is a draft, the latest revisions forwarded to The Times on Friday contain largely grammatical and stylistic modifications and clarifications; the most significant elements of the "final version" recommended by the constitution committee on May 8 remain.

To wit, members and nonmembers alike could be banished from the tribe's jurisdiction; an emergency provision would allow the tribal council to immediately expel a person without referendum or prior hearing if it decides that person poses an immediate danger or threat of danger to the life, health, safety, or property of the tribe or any of its members, employees, or residents; and the proposal would essentially allow a person to be banished for almost any action the tribe determines is a harmful act against it, its members, employees, businesses, developments and other projects.

What's more, under the plan, the tribe would not have to find that a person committed such acts, but merely conspired with others to commit them. The proposed code does not define what constitutes "harmful acts."

Finally, elected and appointed tribal officials and committee members would have immunity from banishment until they were formally removed from office.

The vagueness of many provisions has raised questions about the tribe's authority. For example, the code empowers the tribe to banish members and nonmembers alike from "the jurisdiction of the Tribe," and states the purpose of banishment is to impose remedial sanctions against "individuals residing within the Tribe," though the proposal does not delineate either that jurisdiction or what "within the Tribe" means.

The definitions' section of the proposal does include a definition for "restricted lands" - all tribal trust lands, allotted land, and fees lands owned by the tribe - but, despite being included in the definitions' section, the term "restricted lands" does not appear again in the proposal.

Presumably, the code's geographical references refer to the reservation's boundaries, given the minutes of the May 8 constitution meeting, Stoffel's words in the tribe's prepared statement last week to The Times, and phrasing of the code itself.

The May 8 constitution committee minutes show, for instance, that members understood just how significant a banishment code might be and suggested that it applied to the boundaries of the reservation.

"The Code essentially states that the persons(s) can no longer live in our community, and the whole issue is whether this can be done lightly, this is applying to nonmembers as well as members," the minutes state. "Jurisdictional issues are discussed with respect to fee land in boundaries of the reservation. The person, if nonmember, can be kept off tribal land. There are a lot of nontribal members in tribal housing."

Stoffel's words reflected the same presumption.

"The tribe's constitution and bylaws gives the tribal council the authority to ban individuals from the reservation," she said in the June 1 statement.

And, not least, the code states that if a preliminary hearing concludes no banishment is necessary, that person "may remain within the reservation."

As for actions meriting banishment, the proposal does set out a specific list of violations that could lead to an expulsion decree.

As it reads now, members and non-members at least 18 years of age could face "immediate banishment" for recklessly killing or attempting to kill a tribal member, employee, or any person within the boundaries of the reservation; for sexual assault or attempted sexual assault of that same group of people; for sexual contact, or attempting sexual contact, with such people who are under 16 years of age; for stealing or unlawfully retaining possession of tribal records or destroying tribal records without authorization; for manufacturing or distributing illegal drugs; for intentionally desecrating Lac du Flambeau cultural, religious or ceremonial sites or artifacts, including the Lac du Flambeau cemetery; and for repeatedly engaging in assault intended to inflict serious bodily harm, or aggravated assault.

Finally, grounds for banishment include the more general finding of conspiring with others to commit any harmful acts against tribal members, employees, or any person within the boundaries of the reservation, including the tribe and its businesses, developments and/or projects.

General procedures,

emergency exclusion

The procedures for banishment would give the tribal council vast powers in the process, in addition to its power to undertake emergency exclusions.

To be sure, while tribal members living on the reservation normally would vote in a referendum on a proposed banishment, those members would not have any ability to lift such a decree. Only the tribal council could do so, and banishment would remain in effect until the council revoked it, unless the judgment included an explicit time frame.

Some have raised questions about due process both in the proposed normal banishment process and in the ability of the tribal council to carry out emergency banishment orders, apparently without notice and guarantee that the affected person could defend himself or herself.

Under general procedures, the tribal council would conduct a preliminary hearing to decide whether someone should be banished. If the tribal council recommends banishment, the council would schedule a meeting of the tribe to consider the action, which would be held no sooner than 10 days after the recommendation and no later than 30 days after the recommendation.

In the May 8 constitution committee meeting, tribal attorney Terry Hoyt questioned the nature of the above tribal meeting and again underscored the code's vague language: "Will this be a meeting as whole, since this tribe doesn't do this kind of thing; where, what and who will be at the meeting," the minutes state.

The current proposal has not clarified Hoyt's question.

Following that tribal meeting, in which the council would explain its recommendation and the person subject to possible banishment would be given the opportunity to speak, tribal members residing on the reservation would, within seven days, hold a referendum.

A simple majority would carry the day. If the vote were for banishment, the council would issue a banishment decree with 24 hours of the certification of results.

Once a person is banished, that person would be immediately expelled and could not return for any reason during the period of banishment, except when required to attend court or for four days for the funeral of an immediate family member.

Beginning 72 hours after the banishment, the person could have no contact with members of the tribe living on the reservation, except the banished person could write the tribal president after three years to request a lifting of the decree. Those banished would also be ineligible for any services received, general fund monies, or benefits provided by the tribe, including per capita payments.

For indefinite banishments, the person - now considered a non-entity - could also lose any existing housing assignments, and the tribe could "distribute" any personal property left behind on the reservation,

For emergency banishments, the document states, the tribal council may, by majority vote of a quorum, issue an emergency banishment order against any member or non-member who, based on the foregoing grounds, "poses an immediate danger, or the threat of immediate danger, to the life, health, safety, or property of the tribe or any of its members, employees, or residents, or where delay would result in irreparable damage or harm."

If the council takes such action, the council must hold a preliminary hearing regarding the action within 25 days. The proposal does not specify whether the person affected could speak or give a defense at that hearing.

The banishment would stay in effect until the tribal council decided to lift it or until the preliminary hearing was concluded, but the proposal is silent about what process would take place after the preliminary hearing and whether normal procedures would then apply.

What the tribe can, can't do

While banishment is often thought of as a traditional Native means of punishment, it is not uncommon - or unconstitutional - in the United States. In other words, it is not considered cruel or unusual punishment.

As recently as 2000, the Mississippi Court of Appeals enumerated certain instances in which it could be employed - it had to meet rehabilitative and "must bear a reasonable relationship to the purpose of probation" - and other states have made narrow, prescribed use of banishment. In Georgia, for example, prosecutors have used banishment from particular communities in drug cases to remove offenders from their networks of users and dealers.

But proscription is most prevalent among Indian tribes, and the practice is on the increase, not only in Lac du Flambeau.

Across the county, scores of tribes have adopted or revived the custom, most commonly as a means to control drug trafficking. The Eastern Band of the Cherokee Nation in North Carolina and the Lummi Tribe in Washington are just two examples of tribes adopting eviction ordinances for those convicted of drug-related offenses.

For other tribes, banishment is becoming a more broadly employed tool. The Chippewa of Grand Portage, Minn., uses the procedure more generally to root out what it calls troublemakers. Among the misdeeds, as reported by the New York Times, are gang membership, cultural desecration, disrupting religious ceremonies, and unauthorized hunting or fishing.

What's more, many tribal dissidents believe banishment is on the rise as a weapon with which entrenched tribal governments can get rid of those opposed to their regimes, and they say they do so by using generalized language that give wide berth for a tribal council or leader to classify a political opponent as a "troublemaker."

In March, for example, the Dry Creek Rancheria Band of Pomo considered but postponed action on a controversial "code of conduct" to expel tribal members for actions that - using words close to that in the LdF proposal - "demean or otherwise injure the reputation and image of the tribe or any tribal operation."

Under that proposal, "picketing, leafleting, demonstrating, engaging in any speechmaking or performance ... without the express permission of the Tribal Council or pursuant to an ordinance for issuing permits for such purposes" could have been defined as interference with tribal operations.

Most tribal codes aren't nearly so explicit, however, and dissidents point to a 2003 case involving the Oneida tribe in New York, in which a federal appeals court did not stop the evictions of four Indian families under a tribal housing ordinance.

The tribe actually bulldozed one member's home.

The families claimed they were unfairly targeted by an ordinance that permitted the seizure and destruction of their homes because they had spoken out against tribal leader Ray Halbritter's policies. But the judges pointed to the Indian Civil Rights Act of 1968, which provides only limited federal court jurisdiction over internal tribal disputes.

In effect, the judges determined, because the ordinance applied to all residents and did not single out individuals, the tribe's action amounted to an "economic restraint, rather than a restraint on liberty," and thus did not rise to the level of banishment, which would have been reviewable under the Indian Civil Rights Act.

"Even though the actions of the ruling members of the Nation may be partly inexcusable herein, we can only remedy those wrongs which invoke the jurisdiction of this Court," judge Ellsworth A. Van Graafeiland wrote.

Nonetheless, the judge stated, the court was not "unmindful" of Alexander Hamilton's warnings about the use of vague and broad language:

"If [a] legislature can disfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the votes to a small number of partisans, and establish an aristocracy or an oligarchy; if it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction."

If that danger now existed, Van Graafeiland stated, Congress should consider giving the court power to act. It has not.

However, dissidents, especially in Lac du Flambeau, might take heart from the most recent federal court ruling, on April 30, when, in a landmark decision, Snoqualmie tribal members successfully challenged a banishment decree in the U.S. District Court for the Western District of Washington.

In that case, the court found, the tribe violated the banished members' due process rights under the Indian Civil Rights Act.

The decision was limited - the court said it would not look into the policies and procedures a tribe might have in place or should have in place for banishment. But it did say Indians had a guarantee to due process, including the right to be notified and to be heard on any proposed banishments.

"Beyond determining whether or not Petitioners were provided with notice and an opportunity to be heard, the court does not believe it should delve into the inner workings of the banishment process," the court stated.

The decision opens the door for further review of banishment cases under the Indian Civil Rights Act, and it raises due process questions about the proposed Lac du Flambeau code. Would restricting referendum voters to those residing on the reservation violate due process? Would emergency banishment rules permitting the tribal council to issue an order without notice or immediate hearing infringe those due process rights?

Nonmembers

Other questions concern the tribe's ability to banish nonmembers. In that regard, multiple court rulings indicate the tribe's regulatory authority is extremely limited, but not entirely so.

For example, could the tribe evict nonmembers from privately owned property on tribal fee lands or on public, nontribally owned fee lands?

The tribe says no: "The proposed code does not give the tribe the authority to expel a private property owner from his/her property nor does it apply retroactively," Stoffel said in the tribal statement.

Still, it has been done before. In 1998, Margaret Penn, a non-Indian tribal prosecutor living on land owned by a non-Indian rancher but within the Standing Rock Reservation of the Sioux Tribe in South Dakota, was fired and then subsequently banished after filing a wrongful termination suit against the tribe.

After being handed a banishment decree, law enforcement officers escorted Penn to her home and helped her pack some of her belongings, according to a final decision in the case. They advised her that if she returned to her home she would be arrested, and they escorted her from the reservation.

A court decision on the legality of the banishment order was never rendered because the tribe vacated the banishment. In a later civil suit, a U.S. Court of Appeals acknowledged "legitimate questions" about the legality of the order but did not address it directly.

Accordingly, the question of a tribe's jurisdiction and its ability to banish nonmembers from nontribal fee land within a reservation has lingered.

In 2001, the Supreme Court weighed in on the question generally, in Nevada v. Hicks.

"Indian tribes' regulatory authority over nonmembers is governed by the principles set forth in Montana v. United States, which we have called the 'pathmarking case' on the subject," the High Court stated. ". . . Where nonmembers are concerned, the 'exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.'"

What that meant was, the court asserted, tribes did not have the authority to regulate nonmembers' activities on land over which the tribe could not "assert a landowner's right to occupy and exclude."

Nonetheless, the court issued an caveat to that proclamation, noting that the tribe's limited jurisdiction over nonmembers applied to both Indian and non-Indian land.

:"And Montana, after announcing the general rule of no jurisdiction over nonmembers, cautioned that '[t]o be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands,' - clearly implying that the general rule of Montana applies to both Indian and non-Indian land," the court stated.

In other words, the justices continued, "[a] tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."

Given such unclear and undefined language, a court could justify a tribe's action against a private property owner on the reservation if that person's actions had "direct effect on the political integrity, the economic security, or the health or welfare of the tribe," or, to use the current banishment code's words, constitutes "harmful acts" against the tribe, its members, businesses, developments and projects.

Whether that could include banishment, such as in the case of Margaret Penn, is conceivable but a separate and unresolved question. In any case, given the presumption of inherently limited tribal authority over nonmembers, the burden would be on the tribe in such an action.

One thing is clear. The legal landscape is as murky and muddled as the current Lac du Flambeau proposal's language is general, broad and vague. Taken together, those facts serve to raise more questions than answers about the tribe's latest work in progress - an aggressive remedy called banishment.

Times' reporter Samantha Hernandez contributed research and reporting to this article.



Reader Comments

Posted: Tuesday, April 4, 2017
Article comment by: Samuel Alloway

THATS A GOOD LAW! TAKE BACK YOUR TRIBE AND KEEP EXERCISING YOUR SOVEREIGNTY

Posted: Tuesday, June 9, 2009
Article comment by: annonomus

Laura Stoffel made the statement that the final document would be made public if approved. In otherwords the draft that is being sent to the Tribal members doesn't have all the imformation on it. They are showing only what they want the members to see so that they will vote yes. Then when it is finalized, there will be things in there that the members did not know about



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