20 years ago, 'Banishment'
was in the news
By DAVE KIFFER
August 16, 2014
Ketchikan, Alaska - Twenty years ago this summer, Tlingits from Southern Southeast were at the center of a world-wide media frenzy after a Washington Superior Court Judge chose to agree that two young men were to be “banished” into the wilderness as the penalty for beating a pizza delivery man.
The Judge’s decision in August of 1994, set off over a year of controversy that finally ended when the “banishment” was declared a failure and the teenagers were remanded to finish their sentences in Washington state jails.
In August of 1993, Simon Roberts and Adrian Guthrie, two cousins who had been raised in Klawock, were visiting family in Everett, Washington. According to testimony at their later trial, they decided to rob a pizza delivery man. During the robbery, delivery man Timothy Whittlesey was severely beaten with a baseball bat.
Both boys were quickly apprehended and eventually decided to plead guilty to the crime, even though they faced mandatory prison terms of between three and five and a half years.
The Klawock Mountains
Courtesy the City of Klawock
Enter Rudy James, a Southeast Native activist who was living in the Seattle area. James, saying he represented the Kuye di’ Kuiu Kwaan tribal court in Klawock, petitioned Superior Court Judge James Allendoerfer to consider “banishment” as an alternative to the jail sentence. James told Allendoerfer that banishment was a traditional Tlingit form of justice.
When Allendoerfer agreed, on July 14, to consider the alternative punishment, controversy ensued. The Assistant Deputy Prosecutor for Snohomish County, Michael Magee, filed a counter motion opposing the potential banishment.
“It seems in reality that the defendants are simply being released to their respective grandparents for the next 18 months,” Magee wrote to the court in late July.
Initially, the Klawock Cooperative Association, the only recognized tribal authority in Klawock at that time, also initially challenged the idea of banishment, as did the State of Alaska, and the regional Tlingit-Haida Central Conference.
The federal government also weighed in through the US Forest Service, which expressed concerns about the use of federal land for the “experiment.”
Allendoefer announced that he would make a decision in two weeks after he received more information about the “legitimacy” of the tribal court and whether the Tlingit community was willing to “follow through” on monitoring the banishment and making sure that young men would be safe in their isolation, according to the Associated Press.
Meanwhile, the cooperative association clarified its initial opposition to the banishment. KCA President Roseann Demmert wrote a letter to Allendoefer stating that the association agreed in principal with the tribal court, but had concerns about the “safety” of the young men. Demmert also said the KCA was concerned about “negative consequences” from the federal government if the KCA openly supported the tribal court and the banishment.
About this time, the story exploded beyond the Pacific Northwest and Alaska, as Associated Press and Reuters stories began appearing in newspapers across the country and in Europe and Asia. The idea that a traditional “Native” punishment might be invoked seemed to strike a particular chord in Europe where such venerable broadcasters as the BBC began following the story.
In the United States, CNN, CBS, ABC, NBC and NPR also began airing stories and interviews on the banishment, as did national media in Japan and elsewhere. Several American newspapers, including the Seattle Times, the Los Angeles Times and the New York Times sent reporters to Washington to cover the proceedings in Judge Allendoefer’s court room. Several Outside journalists also came to Alaska to “investigate” the tribal court and interview members of the Tlingit community.
On August 24, 1994, Allendoerfer signed the release order granting custody of Roberts and Guthrie to Rudy James. The next step would be the convening of the tribal court, which would then “try” the teenagers and offer an appropriate sentence, if they were found guilty.
As part of the agreement, the tribal court promised to post a $25,000 property bond to the Superior Court and would make sure the young men stayed clear of drugs, alcohol and firearms.
Tribal social worker Dianna Wynne-James, Rudy James’ wife, would file a report to Allendoefer every three months on the progress of the banishment.
Prosecutors in Washington continued to oppose the arrangement, threatening to appeal the decision to a higher court.
“We consider (the banishment) illegal, improper, unconstitutional and wasteful of taxpayer resources,” Chief Deputy Prosecutor Jim Townsend wrote in a court filing. “We firmly believe the criminal justice system should try to eliminate racial and ethnic bias and not build it into the system.”
James’ background was called into question by some of the journalists covering the story. A Dateline NBC reported uncovered unpaid civil judgments against James totally more than $60,000. James told the Tacoma News Tribune that he was “ashamed” of his debts and was in the process of paying them back.
Other media outlets noted that five members of the proposed tribal court were close relatives of Rudy James, including his brother Daryle, who was a convicted felon. James said that Daryle’s name was accidentally added to the tribal court list.
“The tribal court will go,” Rudy James told the Associated Press in August of 1994. “I’m not going to let a little wind blowing against me stop me.”
A surprising voice of support for the banishment was the family of the pizza driver, Tim Whittlesey. Family members said it supported the judge’s decision and had reached an agreement with James and others for the Tlingit Community to build a duplex in Everett for Whittlesey and his wife Tonya.
On September 1, the tribal court convened in Klawock. More than 70 attended the hearing including Whittlesey. The next day’s Associated Press report noted that everyone attending the court session had to undergo a “purification” involving cedar boughs and that Guthrie and Roberts came in through an “entrance of shame” and wore their tribal regalia inside out.
During the two-day trial, members of the court were allowed to ask questions directly to the defendants. James asked them about the planning of the robbery and assault.
“We didn’t sit down and draw a map,” Guthrie replied, according to the Tacoma News Tribune. “It doesn’t take a lot of skill to rob a pizza man.”
After the trial, the judges deliberated for just over three hours before announcing that Guthrie and Roberts would be banished to two separate islands on the west side of Prince of Wales Island for a year to 18 months.
As part of the banishment, Native elders would instruct the young men in hunting. They would also be given provisions and would be checked on regularly by tribal elders. The goal of the banishment, James told the assembled media was rehabilitation not punishment.
In order to fulfill the banishment, the tribal court refused to say which islands the young men would sent to. That created a media frenzy as reporters from several outlets tried to track the young men to their destinations. There was also the issue of whether or not the tribal court could legally put the teens on property that did not belong to the tribe.
Since most of the land in the area was federal land, the US Forest Service made it clear that the tribe would have to have a special use permit to allow the boys to stay on federal land. The USFS also made it clear from the beginning that it would not grant such a permit.
Some Tlingit leaders bristled at that position and raised the issue of Native land claims, contending that none of the land in the Tongass National Forest had been “rightfully” taken from the Native inhabitants.
By mid-September, the banishment was underway.
In November, Dianna Wynne-James reported to Allendoerfer that the boys were living in one-room cabins heated by wood and that the demeanor of the young men was improving as they were learning to be self-sufficient, according to court documents. There had been at least one unauthorized family visit, she reported. But that the tribal court was making sure that the rules of the banishment were being enforced.
One rule, though, that wasn’t clear was whether the young men could have weapons. The tribal court had provided both with shotguns, axes and knives.
The issue of the potential use of federal land was also simmering. By March of 1995, the Forest Service was investigating reports of what it considered illegal “squatting” and the Snohomish County Prosecutor’s office filed another motion to end the banishment. Tribal Judge Byron Skinna countered that the weapons were allowed for hunting purposes. Skinna also raised the issue of Tlingit land claims to the islands the boys were on.
Allendoefer ruled against the prosecution on ending the banishment, but he also didn’t address the issue of Native sovereignty over the Tongass, according to Jennifer Hamilton’s account of the banishment in her 2009 book, “Indigeneity in the Courtroom.”
Meanwhile, the media reporting was rife with stories that the young men were being visited in their banishment and had even left the islands and had been seen in Craig and Klawock and elsewhere. Little hard evidence was provided, but the rumors of the “sham banishment” continued on POW and in Ketchikan.
In May of 1995, the Washington state Court of Appeals ruled that Allendoefer had no ability to limit the mandatory prison time for the teenager’s crime. Allendoerfer had made it clear from the beginning that the banishment would not reduce the prison time, but he had also indicated that it could have an effect on how long the young men might have to stay in prison after the banishment. He also suggested that a successful banishment might encourage the State Legislature to make changes to the mandatory sentencing law.
In July of 1995, Allendoefer gave Roberts and Guthrie the option of ending the banishment to return to Edmonds to for sentencing, but both men chose to continue the banishment.
By the summer of 1995, though, there were confirmed sightings of both men in Klawock and Craig and the reports that family members were visiting the young men frequently gained credence.
Even Wynne-James noted as much in her reports to Allendoerfer.
“It appears the Klawock community has injected itself into the banishment process, contrary to the intent of the Tribal Court,” Wynne-James wrote. “This has been a detriment to the youth.”
Embert James, a member of the Tribal court, agreed that the banishment was not working.
“They’re not on their own, they’re not by themselves, they’re not thinking about things,” Embert James told the Tacoma News Tribune on Sept. 10, 1995. “At first… you could see a definite improvement in those boys. But then their families came in and got their hands on them, and they quit being dependent on themselves.”
On October 4, 1995, Allendoefer officially ended the banishment and sent the youth to prison to serve their sentences. Guthrie was released in August of 1996. Roberts was released in December of 1997.
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