Mashantuckets' banishment laws seen as flawed by tribal court judgeBy Brian Hallenbeck
Publication: The Day
Published 01/06/2010 12:00 AMUpdated 01/06/2010 12:15 PM
Expulsions by elders council are believed to be on the rise
In banishing Christopher Pearson, the former tribal official facing sentencing on federal wire-fraud charges, the Mashantucket Pequot Tribal Elders Council meted out an ancient form of punishment employed by Indian tribes across the country.
Within weeks of his Nov. 19 conviction in U.S. District Court in Hartford, Pearson was ordered off the Mashantucket reservation, where he owns a home, and to surrender his tribal badge, having "forfeited all rights and privileges of Tribal membership with the exception of services provided by Tribal Health Services."
The elders council also directed the tribe's finance department to cut off Pearson's monthly "incentive" payments — the distributions of Foxwoods Resort Casino revenue that all tribal members in good standing receive.
While the tribe would provide no information about banishments, it's believed that their frequency has increased since the tribe's constitution and by-laws granted the elders council "the authority and responsibility" to impose them.
Mashantucket Pequot Tribal Council resolutions show that 12 people were banished by the tribal council prior to the establishment of the elders council in 1996. Currently, several people are banished each year, maybe more, according to Thomas Weissmuller, chief judge of the Mashantucket Pequot Tribal Court.
Historically, banishments provided a means of social control. Among many modern, federally recognized tribes, the practice has proved effective in establishing order and safety on tribal lands, Patrice Kunesh, a law professor who was once in-house counsel to the Mashantuckets, wrote in a 2007 law-review article. The practice, she wrote, "has engendered serious strife and contention because, in effect, it pits traditional values and customs against modern notions of fairness and due process."
Weissmuller, in fact, said he recently identified weaknesses in the Mashantuckets' banishment laws and procedures while reviewing them at the request of tribal officials. Those weaknesses, he said, "in combination with the fact that no appeal from banishment may be taken to tribal court," has caused him to recuse himself from all criminal prosecutions involving the banishment of tribal members.
Among the flaws, Weissmuller said, is the fact that the Elders Council Banishment and Exclusion Guidelines are not contained in the tribe's published laws and are not publicly available.
In rare cases, banished tribal members have appealed their sanctions in federal court. In a Connecticut case decided in 2007, Neorck Colebut, a Mashantucket tribal member, claimed the elders council's temporary banishment of him due to "suspicion of possession of illegal drugs on the reservation" violated his rights under the Indian Civil Rights Act of 1968. After the council reinstated Colebut, the court rejected his motion to reopen the case in a bid to recover lost incentive payments.
In a precedent-setting decision in April, a federal court in Washington state overturned a banishment, finding the Snoqualmie Tribe had denied nine tribal members due process in banishing them and removing them from tribal membership rolls the previous April.
The Mashantucket elders council, in its resolution ordering Pearson's banishment, said his actions had violated specific provisions of its banishment guidelines, namely those regarding "major crimes" and "exploitation." Pearson's conviction on eight counts of wire fraud stemmed from his involvement in a plan to develop a resort on the Honduran island of Roatan. A jury found the former deputy chief operating officer of the tribe guilty of defrauding investors out of $280,000.
U.S. District Judge Robert Chatigny is scheduled next Tuesday to hear the prosecution's motion to revoke Pearson's bail and detain him until his sentencing Feb. 5.
The elders council resolution also cites Pearson's status as the defendant in a civil case in Mashantucket Pequot Tribal Court in which three tribal members and three nontribal members allege he defrauded them of money they provided for a Roatan land purchase that never materialized. A hearing on the plaintiffs' motion to attach an estate Pearson inherited from his father is scheduled Thursday.
The elders council received information about Pearson's involvement in the federal case on May 7, 2008, and summoned Pearson to a hearing on Aug. 27, 2008, according to the banishment resolution. Following that hearing, the council decided to defer action against Pearson "until all matters were settled in federal court."
Pearson, in a phone interview, confirmed Tuesday he appeared before the council in August. He said he did not appear at the Dec. 2 meeting at which the council voted to banish him. According to the resolution, 26 of the council's 38 active members were present. Twenty-two members voted in favor of banishment; four abstained.