Effort to Banish Drug Dealers Raises Legal Questions

The Blackfeet Tribal Business Council vote to use banishment as punishment

By Justin Franz
The Badger-Two Medicine area near the Blackfeet Indian Reservation on May 6, 2015. Greg Lindstrom | Flathead Beacon

Attorneys who specialize in tribal law say an effort by the Blackfeet Tribal Business Council to banish accused drug dealers may raise legal questions, but it also highlights a growing law enforcement concern in Indian Country.

On Sept. 3, government officials on the Blackfeet Indian Reservation announced they had passed a motion to begin banishing accused drug dealers, or “undesirables.” Native American tribes have used banishment as a punishment for centuries, but only recently have they revived the practice to deal with growing drug problems.

In an interview with the Beacon, Chairman Harry Barnes said the tribal council passed the motion in response to several drug cases falling through the cracks because federal prosecutors are often busy with other cases. Tribal courts can only handle misdemeanors and all felony crimes on the reservation are transferred to U.S. District Court. Barnes cited a recent incident where Blackfeet Law Enforcement had charged someone with making and distributing meth, yet three months later no charges have been filed.

“The idea that an accused person that has not been convicted of a crime by a jury of their peers could be banished does raise some civil rights concerns,” said Gabriel Galanda, a Seattle attorney who focuses on Indian law. “If precautions are not taken, a banishment or exclusion could be disastrous for a tribe, in fact, it could backfire.”

Banishment is when a tribe kicks out one of its own members, whereas exclusion is when a non-tribal member is ordered to leave the reservation.

Galanda said if someone were banished from a reservation, they would have to exhaust all efforts in the tribal legal system before taking it to federal court where they could perhaps argue that the tribe violated the American Indian Civil Rights Act. If the banishment was found illegal there could be big repercussions for the tribe.

However, Kalispell attorney Thane Johnson said he understands why a tribe might want to take the legal risk to start banishing accused criminals. Johnson has practiced law on the Blackfeet for more than 20 years and was a tribal judge from 2002 to 2006. Johnson said it is frustrating to see major crimes, including sexual assaults and drug offenses, fall through the cracks because the tribe can’t prosecute felonies. Johnson said the only way to resolve that issue is to improve the judicial system on America’s reservations.

“The tribe has a point because there is a problem with the system and a lot of crimes go unpunished,” he said. “I understand why they’re doing it.”

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