Some Indian tribes bring back banishment as penalty

MINNEAPOLIS -- Banishment, long regarded as the ultimate punishment among American Indians, is making a comeback among tribes trying to find more effective ways to deal with gangs and drugs.

Generations ago, banishment meant casting offenders out and making them fend for themselves in the forest or on the plains.

The modern version means ordering troublemakers off the reservation, but can also include stripping them of their tribal membership -- a painful penalty in tribes that share casino profits with members.

Minnesota's Grand Portage Band of Ojibwe is one of the latest to revive the practice. The band approved a banishment law this fall and used it against three young people convicted in a series of assaults. Indian leaders feared that the violence could lead to the formation of gangs.

"When people cross that line and the community says we've had enough, it's a process we can use to deal with it," said Norman Deschampe, the band chairman.

The National Tribal Justice Resource Center has no count of how many tribes have recently adopted or revived banishment laws. But the number appears to be on the rise.

At least seven of Minnesota's 11 Indian bands -- all are either Ojibwe or Dakota -- have either passed or used banishment-type laws within the past decade. The Lummi Nation, in Washington state, announced over the summer that it would use banishment more often to deal with rampant drug use.

One reason tribes are turning to banishment is that federal law does not allow tribal courts to impose sentences of more than a year in jail and a $5,000 fine.

Banishment is typically imposed by the tribal courts, where people can defend themselves and petition for reinstatement.

Used sparingly

Where the laws exist, they are used sparingly. Most tribal leaders call banishment a last resort. But when it is used, it can hurt.

Kay Commodore, a Lummi Indian, was stripped of her tribal membership and banished from the reservation after she was convicted of drug trafficking in 1992. Commodore, 67, served three years in prison, and said banishment is worse. She is allowed on the reservation only to visit a plot of land she holds; she is forbidden to visit family members.

"They're taking away a piece of who I am," Commodore said. "I can go out to my land, but I can't stop and see anybody -- that's the thing that hurts me."

The nation's largest tribe, the Navajo Nation, has had a banishment-type law on its books since 1940. But Donovan Brown, assistant attorney general, can recall it being used only once -- about five years ago, for a person involved in gang activity.

The Mille Lacs Band of Ojibwe recently used banishment for the first time in around 75 years, casting out two young members for starting fights and causing other trouble on the Minnesota reservation.

Some Indian leaders argue that banishment simply pushes a tribe's problems elsewhere. Others worry that the punishment could be misused to silence political opponents; that was one reason Minnesota's Leech Lake Band of Ojibwe decided not to revive the punishment in the late 1990s.

Some tribes are also banishing non-Indians, saying it is their only weapon against outsiders who make trouble on the reservation.

Federal and state authorities oversee the prosecution of non-Indians who commit crimes in Indian country, but Indian leaders say some crimes -- like drug possession or domestic violence -- may not be considered a priority.

Last fall, the Bois Forte Band of Ojibwe in Minnesota banished a non-Indian accused of bringing drugs onto the reservation. A tribal prosecutor said it was only the second time in his 13 years that the band had banished someone.