Banishment as Cultural Justice in Contemporary Tribal Legal Systems

Abstract

Indian tribes historically have used banishment as a means of social control and punishment. The custom has been recently revived to help tribes cope with a host of socially deviant and criminally dangerous activities within their respective communities. Hindered by their limited civil and criminal jurisdiction, frustrated with their inability to impose meaningful sanctions, and fearful of further disruption, harm, and violence to their communities, tribal governments recognize that the old customs of banishment and exclusion are powerful and effective means of reestablishing order and safety in their communities.

The use of banishment in contemporary tribal society, however, has engendered serious strife and contention as it pits traditional values and customs against modern notions of fairness and due process. Tribal banishment decisions are now regularly challenged in federal district court under an array of unique legal theories, primarily allegations of unfairness and due process violations under the habeas corpus provision of the Indian Civil Rights Act.

This Article makes several assertions. For one, there is an innate sense of justice in tribal cultural and legal systems comprised collectively of the historical tribal customs around family and community and the more modern written laws and judicial decisions that are intended to afford fairness and due process protections. For another, respect for tribal sovereignty requires restraint in extra tribal judicial review and oversight of tribal banishment and exclusion decisions. Finally, while there are vast variations in tribal social, legal, and political systems and, for that reason, unique "sense[s] of justice," tribes must be allowed to define and experience their individual and particular senses of cultural justice.

Keywords: due process, sovereignty, Indian law, exhaustion of remedies