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The Cherokee Supreme Court: 1823-1835
AuthorMartin, James M.
AdvisorFrancis, Elizabeth A.
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Jurisprudence of the Supreme Court of the United States and policy of the Congress make certain assumptions about the ability of American Indian Tribes to exercise their sovereign judicial power within their respective territories. At their core these assumptions concern the ability of native peoples to govern themselves. These presuppositions include the notion that tribal courts, as extra-constitutional tribunals, are somehow alien and that they lack sufficient maturity to be entrusted with the full complement of powers that come with recognition as legitimate adjudicative bodies. These presumptions are based in part on a misunderstanding of the rich history of tribal courts. Policy makers, including the Supreme Court and Congress, misunderstand the legal history of tribal courts. That history has largely been unwritten. The Cherokee Supreme Court, which operated in the Cherokee Nation from 1823-1835, prior to the attempted removal of the Southeastern Indians on the disgraceful “Trail of Tears” was not the first tribal court. A Choctaw court apparently preceded the Cherokees' experiment in a westernized judicial process by a period of months, but little is known of that Court. On the other hand, a great deal of information about the Cherokee Supreme Court is available. Until now, this information has been in the province of general historians rather than legal historians. While some of the significance of the Cherokee Supreme Court has been obvious, components critical to an understanding of the Court's importance as the first recognizable westernized native justice system in the United States have not been available. An unfortunate result of this is that the Supreme Court and the Congress have lacked this information and thus have made decisions based on an incomplete historical record. This dissertation serves as the first legal history of the Cherokee Supreme Court. Historians have largely analyzed the Cherokee Supreme Court as a fixture of the Cherokee people's remarkable societal transformation in the late 18th and early 19th Centuries, a transformation undergone in a desperate attempt to avoid what we call “ethnic cleansing,” when other nation states do it and what we then called simply “removal.” The Court, however, has its own independent significance, not the least of which was as a tabernacle of justice: the beginning of the flowering of formal Tribal justice systems that would last until the Curtis Act three quarters of a century later. In addition, the Court was a political creation, an outward facing reflection of the sovereignty of the Cherokee people, perceived as a deep threat by the citizens of Georgia in particular. The mere existence of the Court—Indian people self-organized into governmental structures with formalized dispute resolution mechanisms, exerting civil and criminal jurisdiction over those who came into their territories, was extraordinary for the times. The presence of the Court was an impetus in Georgia's ultimately successful attempts to exert its jurisdiction over the lands of the Cherokees. Paradoxically, one of the greatest achievements of the Cherokee Nation fueled its greatest existential threat, genocide. The paper begins with a general survey of the operations of the Court and the men who served her within the framework of the judicial branch of the Cherokee Nation and against the backdrops of both the republican and removal periods of Cherokee history. In addition to the general history, the paper focuses on five areas of particular and unique legal significance: the spoken and written language of the Court, and four case studies—women and the Court, the Court and the institution of slavery, the criminal jurisprudence of the Court, and its civil jurisprudence. Each of these inquiries suggests a living, vibrant Court, actively engaged in the act of nation building, while, at the same time, adjudicating the humdrum daily disputes of ordinary people: individuals, including women and white Americans who trusted the institution sufficiently to turn to it for redress. Much has been made, and rightly so, of the Court's role in the remarkable, desperate transformation of Cherokee culture from a matriarchal, clan-based society into a patriarchal, western law-based society. This only scratches the surface. The very existence of the Court, its role in the dynamic interplay as the frontier rushed past the Appalachians and into the Midwest, and its role in provoking the wrath of the Georgians deserve equal scrutiny. Additionally, how the Court used law as a method of regulating commerce, including bondage slavery, and as a mechanism preserving tribal culture and tradition during a time of crucial stress on the organized existence of the Cherokees is unique in the legal histories of the Indian peoples and little understood. The ethnic cleansing of the Cherokee people was only one of the aspects of the genocide perpetrated upon them by the Americans. Another was the re-writing of the historical record, an effort that reaches all the way to the Supreme Court of the United States. This modest effort seeks to balance that scale, if only slightly.