Published On: Thu, Mar 5th, 2020

Council approves changes to Tribe’s exclusion laws 

 

By SCOTT MCKIE B.P.

ONE FEATHER STAFF 

 

Tribal Council has approved changes to the Eastern Band of Cherokee Indians’ (EBCI) exclusion (banishment) laws.  By an unanimous vote, Council passed Ord. No. 124 amending parts of Cherokee Code Chapter 2 (Exclusion Powers of the Tribe) during its regular session of Council on Thursday, March 5.  

The ordinance was submitted by the EBCI Office of the Attorney General, and Michael McConnell, interim Attorney General, presented several floor amendments to the legislation during Thursday’s session.  

“The changes to Chapter 2 that are in the proposed ordinance do not alter Tribal Council’s authority regarding its exclusive control of banishment and exclusion under the Chapter,” McConnell said.  “What it does is provide the statement of policy and tribal sovereignty in the exercise of exclusion and defines some terms.”

He added, “Tribal Council has the authority to banish and within that authority is the authority to re-visit one of those decisions.  It doesn’t make any requirements that you do so, but it recognizes that you have that power.”  

Earlier in the session, Tabled Ord. No. 18 (2019), submitted by Kallup McCoy II, was withdrawn as the main gist of that legislation was to give Council the ability to re-visit an exclusion decision – something that is contained in the more wide-sweeping changes included in Ord. No. 124.  

“This (Ord. No. 124) does require proper notice to the person being excluded,” McConnell noted.  “The necessity for that is that if somebody were to try to challenge on the back-end and say ‘you can’t get me for trespassing, I didn’t know I was excluded’.  So, the type of service is spelled out.”   

Some of the main changes included in Ord. No. 124 are: 

* Addition of subsection (d) to Section 2-1 which reads, “The power to exclude contains the power to modify or terminate a previously ordered exclusion.” 

* Addition of subsection (e) to Section 2-1, “The Tribe hereby declares that the power to exclude is an inherent and essential part of Tribal sovereignty.  It is indispensable to the Tribe’s autonomy and self-governance.  Further, it is a natural right of the members of this Tribe, through their tribal leaders and codified tribal law, to exercise the power of exclusion to protect the Tribe’s natural, economic, and cultural resources, and to protect the health, safety, and welfare of tribal members.”  

* Amend subsection (b) to Section 2-3, “Such persons shall be provided with a written statement of the grounds for the proposed exclusion at the same time notice of the hearing is served upon them.”  

Ord. No. 124 also adds penalties for those found guilty of harboring individuals who have been banished.  It adds Section 2-10 (Harboring excluded person) which reads, “Any person who harbors an excluded person on Cherokee trust lands shall be guilty of a crime and upon conviction thereof may be sentenced to a term of imprisonment not to exceed six months or a fine not to exceed $5,000, or both.”  

A floor amendment was passed adding the following to the end of the last sentence in Section 2-10 which reads, “…but shall be sentenced to a mandatory minimum sentence of not less than seven (7) days.”  

Ord. No. 124 also changes the vote amount required by Council to exclude an individual by amending Section 2-5 to state that a simple majority vote is required to exclude an individual instead of the previous three-fourths vote.  

Many of these changes were discussed during a work session held on the legislation on Wednesday, Feb. 26.  One major point of discussion during that session was a new state law regarding people excluded by the Tribe who re-enter and trespass on EBCI trust lands.  N.C. House Bill 744 passed and was ratified by Gov. Roy Cooper on June 15, 2018 and took effect on Dec. 1, 2018.  According to information from the General Assembly, “…House Bill 744 would make it a first-degree trespass for a person to enter onto or remain upon lands of the Eastern Band of Cherokee Indians after having been excluded by resolution passed by the Tribal Council.  A first offense would be a Class 2 misdemeanor, and any subsequent offense would be a Class I felony, including a fine of not less than $1,000.”

McConnell addressed the change during that work session noting, “The state law did change, and it’s a felony now to violate an exclusion resolution issued by the Tribe.  So, that’s a great step.  The difficulty is in the on-the-ground ‘how do you deal with this’ situation.  We constantly try to work with the police department on how to do that.  One of the sticking points with the tribal process is making sure that the person who is being excluded has been properly served with the exclusion resolution.”    

He added, “We may all know it.  The papers may all be in our offices, but if that person hasn’t been served properly when it goes to court they would have a very good defense to that exclusion.”  

Rep. Saunooke said during the work session, “We’ve banished people and they’ve never left here.  It’s a felony now, and that’s a good thing.” 

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