Age-old tribal practice battles a modern threat

ONAMIA, MINN. - Fed up with a recent spate of chronic lawlessness, tribal lawyers for the Mille Lacs Band of Ojibwe are turning to a tool both new and ancient to rid their community of troublemakers.

Four band members were recently banished from the reservation -- excluded for five years based on myriad assaults and weapons violations.

Such punishment was at one time essentially a death sentence. Those ostracized were either left to the whims of enemy tribes or, more likely, starved or froze alone without the help of their community. The modern-day version, formally called exclusion, is less harsh.

For example, an excluded member is still entitled to the $7,000 yearly share of Grand Casino gambling profits -- as long as the deposit is done automatically or a relative picks up the checks, because the excluded can't set foot on the reservation and can be held in contempt or charged in state court with trespass for trying.

The four newly banished members can request reinstatement in 2013 if they remain law-abiding and can show they've been working regularly.

"It's an extreme way to deal with a problem and a little bit rare," said Solicitor General Rjay Brunkow, the top lawyer for the Mille Lacs Band of 4,000 members, about 100 miles north of the Twin Cities.

"I think you're going to see it more and more as gangs and criminal elements start to make their way on to the reservations, especially those closer to metro areas."

Still rare in Minnesota

Six of Minnesota's 11 tribal bands have banishment provisions on their books. The Grand Portage Band of Ojibwe on Lake Superior brought back the old practice five years ago. About 40 people met to discuss possible banishments in serious criminal cases recently at the Fond du Lac Reservation in Cloquet. And the Bois Forte Band of Ojibwe in northern Minnesota has banished a few people, including a non-Indian accused of bringing drugs on the reservation in 2003.

Banishment laws cover band members and other residents of the lands under tribal jurisdiction, one of the few rights tribes have over non-Indians.

"Someone has to be a threat to the entire community and if they cross that line and the community says we've had enough, it's a process we can use," Grand Portage Chairman Norman Deschampe said.

Tribes in Canada, Arizona, New York and Washington state also have turned to the old practice in recent years.

Several California banishment cases have included stripping members from tribal rolls, often for political reasons, according to David Wilkins, a University of Minnesota professor of American Indian studies.

He said the Mille Lacs cases, which allow excluded members a chance to return, is more in keeping with one of the world's oldest constitutions, created by the Iroquois around 1400.

"If you rectify your ways, it allows you to come back in," Wilkins said.

A last-resort option

Federal government limits on tribal courts -- which can only levy fines or hold an offender in jail for a year -- prompted Mille Lacs to resort to the banishments last month. Two more cases are pending, and tribal lawyers say they're posed to proceed with more cases if the violent outbursts continue.

"Our only option is to remove them from the community by keeping them off the reservation," Brunkow said. "We are left with banishment or exclusion as the sole means of dealing with individuals where one year in jail is not enough."

Three of the Mille Lacs members excluded last month -- Patrick Provo Jr., 24; Benjamin Garbow, 27, and Zachary Nayquonabe, 20 -- were accused of stopping cars July 8 and holding drivers at gunpoint.

"That was the straw that broke the camel's back," Brunkow said.

They also are accused of other assaults and weapons violations. Nicholas R. Benjamin, 25, the fourth man banished, is already locked up at the Stillwater state prison for assault, but is due out next year. He's accused of firing a gun at a house in 2006, assaulting a juvenile in 2007 and other offenses. None of those four attended the banishment hearings.

A fifth band member, 23-year-old Cortney Nadeau, is scheduled to be in tribal court Oct. 22 for his exclusion hearing. Nadeau has had seven contacts with police in the past year and has pending cases in Mille Lacs County District Court for an alleged drive-by shooting, domestic assaults and weapons violations. He was sentenced to three years for aggravated assault when he was 17 and has posted $200,000 bail to remain free pending his trial next month.

"These individuals have refused to abide by our cultural standards, and this [banishment] is a traditional form of dealing with those people," Brunkow said.

Boundary dispute

Mille Lacs County Attorney Jan Kolb, whose county includes the reservation, said she understands the tribe's decision because the four men banished have been "a huge problem."

But in a long-simmering dispute about reservation boundaries, Kolb and tribal officials disagree on just how big a parcel the banishments cover.

Brunkow said those excluded must remain off the 61,000 acres spelled out in an 1855 treaty. Kolb said that the state considers that treaty void and that she will use her office to enforce the banishment only on about 3,000 state-recognized acres hugging the southwestern shore of Lake Mille Lacs near Vineland.

Kolb said she's neutral on the issue, but she's heard people point to case law and human rights doctrines that say exiling people is considered cruel and unusual punishment. Others, she said, complain that reviving banishments is just a way of dumping the tribe's problems on neighboring communities.

"Many of these individuals grew up in the rest of the state and in the Twin Cities, and that's where they learned this behavior -- then they came back here and tried to exhibit it," said Don Wedll, a planner and adviser to the Mille Lacs Band for more than 30 years.

"When people refuse to obey the law and threaten and hurt people, the tribe isn't going to tolerate it," he said.

Curt Brown • 612-673-4767