Cherokee and Justice
The Cherokee (Tsalagi) and Justice
The Cherokee (Tsalagi) People and Justice
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"I saw the helpless Cherokees arrested and dragged from their homes, and driven at the bayonet point into the stockades. And in the chill of a drizzling rain on an October morning I saw them loaded like cattle or sheep into six hundred and forty-five wagons and started toward the west....On the morning of November the 17th we encountered a terrific sleet and snow storm with freezing temperatures and from that day until we reached the end of the fateful journey on March the 26th 1839, the sufferings of the Cherokees were awful. The trail of the exiles was a trail of death. They had to sleep in the wagons and on the ground without fire. And I have known as many as twenty-two of them to die in one night of pneumonia due to ill treatment, cold and exposure..."
-Private John G. Burnett
Captain Abraham McClellan's Company,
2nd Regiment, 2nd Brigade, Mounted Infantry
Cherokee Indian Removal 1838-39
The Cherokee People are split into two broad tribal organizations or affiliations; the Eastern Cherokee, who inhabit the ancestral homelands in North Carolina and Tennessee and the by far greater in number Western Cherokee who reside on Tribal lands within the State of Oklahoma. The Cherokee refer to themselves as "Ani Yun Wiya" or ''Real People. The term Tsalagi or Tsalaki probably derives from the Creek term for the Cherokee, "Tciloki", meaning "people of different speech" or "people whose speech is different". The official Tribal designation of the Western Cherokee is United Keetoowah Band of Cherokee Indians, again located within the State of Oklahoma.
There are a number of theories regarding the origins of the Cherokee people; however, perhaps the most widely accepted school of thought around the issue of origin posits that they migrated from Northern regions into Southern Appalachia at a realtively late point in time, perhaps as late as the fifteenth century. The Cherokee speak an Iriquoian language and are thus related to the tribes of the Haudenosaunee, referred to later as the Iriquois Confederation by white settlers. Since the arrival of the first of European settlers in the sixteenth century the Cherokee had been regarded as one of the most advanced of North American Indigenous civilizations. Occupying the Southeastern corner of the current continental United States the ancestral lands were rapidly coveted by European settlers but the discovery of gold ore in present-day Georgia expedited heightened conflict with the whites in the 1830s. Despite a Supreme Court Ruling handed down by Justice Marshall the Cherokee were forcibly removed, in large part, from their homelands in Georgia. Andrew Jackson, in defiance of the High Court ruling, acerbically commented, "The Justice has made his ruling, now let him enforce it!" as he oversaw the removal of the Cherokee in one of the bleakest and most inhumane of acts in the annals of US History.
This removal of the Cherokee people from their homelands in Georgia a thousand miles to the west to the Indian Territory (present-day Oklahoma) has gone down in history as the "Trail of Tears". Thousands of people died along the trail and the internment camps set up en route prior to reaching their destination. In spite of their losses the Cherokee people quickly re-established themselves in Oklahoma and founded thriving communities centered around their new capitol of Tahlequah. In 1839 the Cherokee drafted and ratified their Constitution and began printing their own newspaper in the Cherokee language---the first of North American tribes to do so. The creation of the Cherokee writing system by Sequoyah in 1821 and the propagation of written materials and the inception and construction of a fine system of public schools, together with an high level of social organization, has led historians to refer to the period up until 1860 as the "Golden Age" of the Cherokee people.
The Cherokee Nation today is recognized as a Sovereign entity covering nearly 7,000 square miles of territory in the Northeaster corner of the State of Oklahoma. The organization of the Cherokee Nation mirrors that of other contemporary Republics, dividing authority into a tripartite system; Legislative, Executive and Judicial branches of government. Nearly 70,000 of the more than 300,000 Cherokee Tribal members live within the borders of the Cherokee Nation.
Under a revised Constitution, ratified in 1976 and approved by the Commissioner of Indian Affairs, Executive Power is vested in the Tribal Chief and a Deputy Tribal Chief presides over the Tribal Council which represents the Legislative Branch of the Cherokee Nation. Fourteen elected officials comprise the Tribal Council. The Judicial Branch is comprised of the District Courts and Court of Appeals Tribunal. The Tribunal is comparable to the United States Supreme Court and its three members are appointed by the Tribal Chief.
In 1990 the Cherokee Nation established operational parameters for its courts and introduced its own criminal penal and procedural codes.
The coerced removal of the tribes of the American Southeast marked a period of less than honorable actions by the United States and created an irremovable stain on U.S. credibility in Indian Affairs. After decades of paternalistic, but generally well-intentioned civilization efforts, U.S. Indian policy took a dramatic turn in aims and goals in the early 19th century, forsaking Indian civilization to instead pursue American westward expansion. Washington and Knox’s ultimate goal of completely integrating civilized Indians into U.S. society was abandoned under the auspices of racist claims that Indians were incapable of truly achieving civilization. Nowhere can the inherent inaccuracy and unfairness of such claims be better seen than in the case of the Cherokees. More so than any other Southeast tribe, the Cherokees wholeheartedly and successfully pursued civilization, as evidenced by the anglicized legal institutions embraced and embodied by the Cherokee Nation. The Cherokees so thoroughly accepted these legal institutions that they became the centerpiece of Cherokee efforts to resist Removal. In the end, however, despite their civilized Removal resistance strategies, the Cherokees suffered what was likely the harshest removal of all the Southeastern tribes.
Greymorning, Stephen, In the Absence of Justice: Aboriginal Case Law and the Ethnocentrism of the Courts, Department of Native American Studies, The University of Montana, Missoula, Montana, USA, 59812, The Canadian Journal of Native Studies XVII, 1(1997):1-31
Between 1810 and 1832, the United States Supreme Court established legal precedent on issues of Aboriginal rights with decisions frequently referred to as the "Marshall Cases." Since then these cases have consistently been cited as definitive statements providing legal justification for the alienation of land and sovereign rights from Indigenous peoples. One goal of this paper is the examination of how culture, as an ethnocentric force, has influenced the interpretation of law in a manner that has helped to maintain a colonial control over indigenous North Americans. Entre 1810 et 1832, la Cour Supreme des Etats-Unis etablit un precedent legal sur les problemes des Autochtones en se referant frequemment a ce qu'on disait les "Marshall Cases." Depuis ce temps-la, on cite ces cas comme declarations decisives fournissant la justification legale d'aliener les terres et les droits souverains des peuples indigenes. Un des buts de cet article est d'examiner comment la culture, en tant que force ethnocentrique, influenc;a I'interpretation de la loi d'une maniere qui aida a maintenir Ie contr61e colonial sur les Indigenes de l'Amerique du Nord.
Heck, William B. and Ralph Kearn, Michael B. Wilds, "Structuring the Cherokee Nation Justice System: The History and Function of the Cherokee Nation Marshal Service", Criminal Justice Policy Review March 2001 vol. 12 no. 1 26-42 (Sage Journals)
Once the most powerful indigenous nation in the southeastern United States, the Cherokees survive and thrive as a people nearly two centuries after the Trail of Tears and a hundred years after the allotment of Indian Territory. In Our Fire Survives the Storm, Daniel Heath Justice traces the expression of Cherokee identity in that nation’s literary tradition
Climate adaptation strategies typically involve making adjustments to laws about planning, resource allocation, and infrastructure to ensure that the built and natural environments will continue to support human communities. The question investigated here is related but distinct. This essay interrogates the necessary conditions for indigenous communities to survive, and perhaps even thrive, while maintaining their unique cultures in the face of dramatic and/or unknowable material circumstances. In other words, rather than ask how indigenous communities will adjust to the effects of a changing climate, this article asks what the essential conditions are for indigenous communities themselves to consider the extent, scope, and terms of any and all necessary adjustments. The history of the Cherokee Nation’s adaptation to their forced removal from their homelands in the Southeast to Oklahoma, explored briefly here, provides an initial set of hypotheses about the core components for successful adaptation to radically different territorial circumstances.
Judge John Martin created the modern Tribal Court. This template, still in use today, envisions a Court based on notions of jurisprudence easily recognizable to western eyes, yet leavened with aspects of Tribal culture and tradition. The model comprises a Court system that is familiar and dedicated not only to sovereignty, but also to defiance. The significance of the beginnings of the modern Tribal Court has been consistently underestimated, particularly by the Supreme Court of the United States. John Martin’s crucial role in it has largely been forgotten. This is partially because the origins of the Courts of the Cherokee Nation are seen, and correctly so, as but one example of the overall transformation of Cherokee society in a desperate attempt to demonstrate to the dominant white society that the Cherokee people had been assimilated to a degree and their removal from the Southeast was unnecessary. This view is incomplete, however, and has had the effect of diminishing the monumental success of creating a Western system of laws and justice in the Cherokee Nation—a system which began to exercise full jurisdiction in the early 1820s. Such diminution allows the Supreme Court of the United States to gloss over the truth—that Indian people historically operated respected Tribal systems of justice replete with all the components we take for granted today in our state and federal courts.
In Indian Justice, Grant Foreman presents John Howard Payne's first-hand account of the trial of Archilla Smith, a Cherokee charged with the murder of John MacIntosh in the fall of 1839. The Cherokee Supreme Court at Tahlequah (in present-day Oklahoma) found Smith guilty and sentenced him to die. Occurring immediately after the Cherokee Removal to west of the Mississippi River, the trial involved people on both sides of the bitter factional controversies then raging in the Cherokee nation. Payne's account of this important Indian case first appeared in two installments in the New York Journal of Commerce in 1841. In his foreword to this new edition, Rennard Strickland places the case in historical and contemporary context, exploring the evolution of tribal court systems and Indian justice over the past century and a half.
During the period when the United States was under the Articles of Confederation, a committee of the Continental Congress condemned the "avaricious" attempts of people in the southern states to get Indian lands "by unfair means," citing it as "the principal source of difficulties with the Indians." Shoi'tly afterwards, in 1788, Henry Knox reported that the intrusions of whites on Cherokee lands were tantamount to war. The Continental Congress responded with a resolution citing the Hopewell Treaty provisions and directed Knox to prepare to expel the intruders by force. The states did not respond and the troops were not mobilized, but the dispute delayed North Carolina's ratification of the Constitution.