Cherokee had tough laws to deal with crime. Homicide was one of the worst crimes. When both, aggressor and victim were Cherokee, two Cherokee clans would confront one another to settle the matter by the customary rules of domestic law. Blood revenge was a question of harmony, not necessarily of a vendetta. If a member from one clan killed the member of another, then balance must be restored. Blood revenge was considered very sacred and was carried out under the utmost sincerity. If a member of the clan a) should kill a member of the clan b), the clan b) would be owed one life, and the clan a) would pay with a life. Usually, the eldest brother or nearest male relative of a victim was expected to be the avenger of spilled blood. As far as the aggressor concerns, the entire clan was responsible for the crime of one of its members, and there were no exceptions. It was a system that worked well for the Cherokees, because relatives themselves would bring the fugitive to justice to avoid like punishment. The father of a family couldn't punish his own children, since they were from a different clan (wife's), and if the wife's clan was the one involved in the dispute, that didn't affect him, since he never become a member of the clan. The law of retaliation even applied in minor offenses. Accidental killing may be punished in several ways, depending on the circumstances of the event. If the aggressor was still in the area, it wasn't likely the offended clan would take the life of a relative, but if the aggressor fled, another member of his Clan would be selected in his place, usually the brother. One rule is undisputed: neither the aggress or or another member of the clan can either prevent the execution or seek retaliation. That law was domestic, and was not applied to intertribal killings, which would led to war. Murder committed within the same clan, it frequently happened that the clan interceded with the head chief of the nation, and a pardon was granted, which pardon is published in the national council when convened.

The Cherokee had four towns of refuge, one of them was Echota, to protect anyone who intentionally or unintentionally slew another Cherokee. Also, every priest's door and yard were places of refuge, and the avenger could not touch the presumed criminal there. If a presumed criminal was asking for sanctuary, the priest would listen to the details of the incident, and call a Council to examine the evidence and witnesses. Their method to test a witness: for inconsequential affairs, the elderly priest who served as judge asked each witness whether they had lied when they gave testimony. In bigger affairs, the priest asked : "What you have now said, is it true in the beloved name of the great and self-existent God ?. If the court decided that the accused was guilty of an unforgivable crime, he was not publicly condemned, but rather placed in the forefront of a battle line or in some circumstance that would bring him a noble death. This kind of decision did not apply in all instances besides those wherein sanctuary was sought. Other times justice may be summary and brutal in ancient times. Criminals who seriously harmed the tribe by their actions were sometimes stoned to death or killed with a weapon. A favored treatment was to take the individual to the top of a high cliff and cast him headlong over the side.

A Cherokee manslayer who hoped to escape execution would take the warpath, and if he obtained a scalp, would offer it to the victim's relatives. It was a legal principle akin to compensation and forgiveness. The clan of the victim were not obliged to accept, but often did, especially when the homicide had not been intentional. If the aggressor was killed in battle, the victim's clan was satisfied and did not seek vengeance against the rest of the aggressor's clan.

Those are some of the laws the Cherokee had:

  • Unauthorized person learning religious secrets
    Either Spirits or white priest who calls Spirits.
    Demons sent from Spirit world.
    Death before next day.
  • Theft of sacred religious relics
    Spirits or white priest who call Spirits
    Spirits themselves
    Immediate death
  • Assault on Priest
    Spirits or white priest who calls Spirits.
    Spirits themselves.
    Death, but uncertain date or manner.
  • Widespread deviation from general norms of conduct so frequent as to offend Spirits, i.e., adultery.
    Priest must call upon Spirits.
    Spirits through agents of disease.
    Sickness, suffering, smallpox, plague.
  • Women's taboos.
    Spirits, white priests, or other women.
    Spirits themselves; agents of disease; demons sent from Spirit world.
    Death, sickness; entire village will suffer.
  • Failure to follow rituals such as bathing, singing songs, eating corn; drunkenness at festivals.
    Spirits or white priest who calls Spirits.
    Agents of Spirits.
    Sickness, bad luck. Entire village may suffer.
  • Arson-frequent burning of individual or public property.
    Council of Seven Clans (White Courts).
    Appointed by Seven Clans Council; select group which should be composed of individuals whose property was burned if possible.
    Death (throwing from cliff or high place)
  • Assault-frequent and aggressive attacks upon the person of others
    Council of Seven Clans (White Courts)
    Group appointed by Council, should be those assaulted if possible
    Whipping or infliction of similar assault
  • Food and field regulations, refusal to work, contribute share of work and crops.
    Council of Seven Clans (White Courts)
    Select group or elder members of individual's clan
    Whipping, insult, possible expulsion(outlawry)
  • Hunting Regulations
    Council of Seven Clans
    Select group or elder clan members
    Whipping, insult, and possible outlawry; scratching legs
  • Misrepresentation, wearing fraudulent insignia, using wrong war name, etc.
    Either Council of Seven Clans for peace offense or Military Court of Red Organization for war offense
    Public Executioner
    Whipping, name calling, public disgrace
  • Treason-deliberate violation of community interest which benefits recognized enemy of group.
    Either Council of Seven Clans or Military Red Court
    Select group of significant leaders, one from each clan.
    Death
  • War regulations, order of fire, command, restrictions on attack.
    Military or Red Court Enemy in battle or tribal executioner
    Place violator in battle position where certain to be killed, death by tribal executioner, scratching legs
  • Women's taboos, separation, childbirth, etc.
    Council of Beloved Women of the Seven Clans; informal group of women
    Select women of community
    Stoning, mutilating, whipping, death
  • Widower or widow remarriage or mourning requirements.
    Council of Beloved Women of the Seven Clans; informal group of women
    Select women of community
    Death, stoning, mutilation, whipping
  • Witchcraft
    Council of Seven Clans (White Courts)
    Enforcement Company appointed from each of the Seven Clans
    Death
  • Intermarriage within clan
    Clan members especially immediate family of violators.
    Clan members selected by family.
    Death for the couple
  • Homicide
    Clan members of immediate family of deceased
    Oldest male relative (generally brother) of the deceased clansman; but a member of murderer's clan might execute punishment
    Death for the murderer or a member of his clan
  • Incest
    Informal clan consensus
    Clan representative
    Death
  • Infanticide
       Mother
    No stigma for mother
    No penalty or enforcement
    None
  • Infanticide
      Father
    Informal clan decision
    Wife's relatives as clan revenge
    Death
  • Sex crimes-bigamy, prostitution, incest, only to extent violate clan blood customs; see Intermarriage within clan
  • Suicide
    Clan offense but death prevents earthly retribution so punishment left to spirits. Spirits' clan should cleanse blood but cannot punish the suicide Ghost must always remain in the land; cannot pass to Nightland
  • Theft from dead or graves of dead
    Members of clan of the deceased
    Bone bearer assisted by clan
    Death
  • Adultery (see also Spirit)
    Husband or wife might ask divine assistance to locate guilty person
    Injured husband or divine intervention
    Punish wife with whipping, mutilation, death; death by divine intervention
  • Assault (see also Spirit)
    Injured individual
    Injured individual to
    Return in kind, related to nature of assault
  • Rape
    Husband of rape victim; the victim apparently had no authority
    Husband
    Death
  • Theft (see also Spirit, clan)
    Individual from whom item was stolen; divine assistance from priest to locate thief
    Individual injured, no divine recovery of goods
    Recovery of goods in question and public humiliation of thief
The Blood Revenge Law was abolished by the Cherokee National Government on September 11, 1808

" Be it known, That this day, the various clans or tribes which compose the Cherokee Nation, have unanimously passed an act of oblivion for all lives for which they may have been indebted, one to the other, and have mutually agreed that after this evening the aforesaid act shall become binding upon every clan or tribe, and the aforesaid clans or tribes, have also agreed that if, in future, any life should be lost without malice intended, the innocent aggressor shall not be accounted guilty.

Be it known, also, That should it happen that a brother, forgetting his natural affections, should raise his hands in anger and kill his brother, he shall be accounted guilty of murder and suffer accordingly, and if a man has a horse stolen, and overtakes the thief, and should his anger be so great as to cause him to kill him, let his blood remain on his own conscience, but no satisfaction shall be demanded for his life from his relatives or the clan he may belong to.

By order of the Seven Clans"

Cherokees were a law-abiding people, whose ancient customs served them well. The Europeans didn't introduce the concept of corporate responsibility, the Indian laws were already using that concept.

During the 1830's and 1840's, the Indian nations set up their law enforcement system and judicial courts similar to what they had in the East. The Cherokee divided their country into eight districts or counties, laid a tax on people to build a courthouse in each of those counties and appointed four circuit Judges.

In 1829, the Cherokees passed a law to protect their land, sentencing to death those who would dispose of Cherokee land without permission of the Nation:

"Whereas; a law has been in existence for many years, but not committed to writing, that if any citizen or citizens of this Nation should treat and dispose of any lands belonging to this Nation without special permission from the National authorities, he or they shall suffer death; Therefore; resolved, by the Committee and Council, in General Council convened, that any person or persons who shall, contrary to the will and consent of the legislative council of this Nation in general council convened, enter into a treaty with any commissioner or commissioners of the United States, or any officers instructed for that purpose, and agree to sell or dispose of any part or portion of the National lands defined in this Constitution of this Nation, he or they so offending, upon conviction before any of the circuit judges aforesaid are authorized to call a court for the trial of any such person or persons so transgressing. Be it Further Resolved; that any person or persons, who shall violate the provisions of this act, and shall refuse, by resistance, to appear at the place designated for trial, or abscond, are hereby declared to be outlaws; and any person or persons, citizens of this Nation, may kill him or them so offending, in any manner most convenient, within the limits of this Nation, and shall not be held accountable for the same." Passed by the Cherokee General Council on October 24, 1829

You can read a extract of the laws the Cherokee nation in 1852 here

You can read the current Cherokee Nation constitution here



From Blood law to Native American Marshals

Extracted from:

OKLAHOMA'S Frontier Indian Police By Art T. Burton Copyright 1996. Originally published in the Oklahoma State Trooper Magazine.

Cherokee marshall badge, picture by Phil Konstantin Around 1808, the Cherokee Nation passed an act appointing "regulators" to eliminate horse stealing and robbery, to protect widows and orphans, and to kill any accused person resisting their authority. This action was taken when the Cherokees were located in the South U.S., before the "Trail of Tears." The Cherokee Advocate, published at Tahlequah, reported on November 13, 1844, that the Cherokee National Council had passed a bill authorizing a Lighthorse Company. It was to be composed of a captain, lieutenant and twenty-four horsemen. Their assigned duty was to pursue and arrest all fugitives from justice. Some of the lighthorse police were black men and white men. The blacks were citizens due to the Treaty of 1866, where the Indians were told to give their former African slaves citizenship and rights. The former slaves became known in the nations as Indian Freedmen and their descendants were likewise noted. The Cherokee got the name "lighthorse" from Revolutionary War hero, General Henry Lee who was called "Lighthorse Harry" due to the rapidity of his cavalry movements during the conflict. Henry was Robert E. Lee's father.

An example of early Cherokee justice was the punishment for rape. For the first offense, the rapist was punished with fifty lashes upon the bare back and his left ear cropped off close to the head: for the second offense, one hundred lashes and the other ear cut off, for the third offense, death. Due to some circumstances the early lighthorse had to serve as policemen, judges, and jurors. Their job was eased in 1874 by the construction of a national prison at Tahlequah presided over by a high sheriff. The Cherokee Nation had a gallows for execution at Tahlequah. None of the other Indian nations had a national prison and used firing squads for execution.

The United States Indian Police were completely under orders of the Indian agent. They occasionally assisted in the enforcement of tribal laws. They also arrested criminals, whom they turned over to deputy U.S. marshals, and removed illegal squatters and intruders who had been reported to the agent by the Principal Chief. They arrested fugitives from justice and turned them over to the officers of neighboring states when the governors made request upon agents, as they sometimes did, instead of upon the Principal Chief. However their number one duty was upholding Federal laws in response to introducing liquor into the Indian Territory. U.S.I.P. were paid a salary ranging from five to fifteen dollars a month from the U.S. government and received additional monies from the tribes for removing intruders and for special services.


Nowadays, the Cherokee Nation Marshal Service have sole jurisdiction over Cherokee restricted land. No state or local agency can enforce the law on Indian land without a cross-deputization agreement. County deputies and members of a District Attorney’s Task Force have authority to enforce the law on non-Indian lands. The cross-deputization agreement means that Cherokee Nation Marshals can now assist local law enforcement agencies on non-Indian land, and that local law enforcement agencies can now assist the marshals on Indian land.

For a better comprehension about the Tribal Justice in our days, please visit this page National Tribal Resource Center, a project of the National American Indian Court Judges Association ( thanks to Phil Konstantin for this link )

  Email me at  info@cherokeebyblood.com

 

The information on this page  has  been extracted from

 "The Cherokee People" by Thomas E. Mails, John Phillip Reid "A law of blood: the primitive law of the Cherokee Nation ( New York, New York Univ. Press, 1970 ), The Brainerd Journal - 1820, OKLAHOMA'S Frontier Indian Police By Art T. Burton,Copyright 1996. Originally published in the Oklahoma State Trooper Magazine and the list of Cherokee laws from  Tabitha's Wildfires fury- page. The badge illustration is property of Phil Konstantin, from his web page American Indian net
 

Title and graphics by We-sa, © 2002,2003

Designed and maintained by We-sa ( The Cat )

 

Best viewed in 800 x 600