The Cherokee in 1817

When the Europeans began their invasion of the Americas, the Cherokee were an agricultural people whose villages could be found throughout the American Southeast. By the first part of the nineteenth century, the Cherokees had had enough experience in dealing with the American government that they understood that they needed to have a unified government. Summarized below are some of the Cherokee events of 1817.

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A Brief Overview of Cherokee Culture

When the Europeans began their invasion of the Americas, the Cherokee were an agricultural people whose villages could be found throughout the American Southeast. In his book In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, Walter Echo-Hawk describes it this way:

“The aboriginal Cherokee homeland extends throughout the mountainous Allegheny region of the American Southeast in present-day Georgia, Tennessee, Alabama, Virginia, Kentucky, and the Carolinas.”

This territory spread over 40,000 square miles.

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Cherokee Spirituality

Among the Cherokee, spirituality (religion) was embedded into everyday life and was not seen as something apart. In her book Cherokee Women: Gender and Culture Change, 1700-1835, historian Theda Perdue writes:

“The Cherokees did not separate spiritual and physical realms but regarded them as one, and they practiced their religion in a host of private daily observances as well as in public ceremonies.”

Cosmology refers to the concept of the general order of the universe. The cosmos was seen as being composed of three levels: The Upper World which was the domain of past time and predictability and which was represented by fire; the Under World which controlled the future and change and which was associated with water; and This World which was the domain of human beings who mediate between the Upper World and the Lower World.

In This World, human beings do not have dominion over plants, animals, and the rest of creation. Instead, they live with creation, attempting to maintain balance within This World. Spiritual power can be found throughout creation. Thus plants and animals have spiritual power, as do rivers, caves, mountains, and other land forms. In their book The Columbia Guide to American Indians of the Southeast, Theda Perdue and Michael Green report:

“These features served as mnemonic devices to remind them of the beginning of the world, the spiritual forces that inhabited it, and their responsibilities to it.”

Sacred Fire

One of the common elements of the spirituality among the Indians of the Southeast is the sacred fire as a symbol of purity and the earthly representative of the sun. Among the Cherokees, the fire and the sun were viewed as old women. Out of respect, the fire was fed a portion of each meal, for if she were neglected she might take vengeance on them.

While the sacred fire represents the sun and the Upper World, water (especially water in springs and rivers) represents the Under World. Among the Cherokee, it is important to keep these two elements apart and therefore water is never poured on the sacred fire.

For the Cherokee, the sacred fire is seen as a grandmother and is human in thought, emotions, consciousness, and intent. Anthropologist Peter Nabokov, in his book Where the Lightning Strikes: The Lives of American Indian Sacred Places, writes:

“Fire was the medium of transformation, turning offerings into gifts for spiritual intercessors for the four quarters of the earth.”

The sacred fires are fed with the wood from the seven sacred trees: beech, birch, hickory, locust, maple, oak, and sourwood.

Balance

Among the Southeastern tribes, such as the Cherokee, the idea of balance is important. There is a spiritual view that the world is a system of groups which oppose and balance one another. In her book Cherokee Women: Gender and Culture Change, 1700-1835, historian Theda Perdue says:

“In this belief system, women balanced men just as summer balanced winter, plants balanced animals, and farming balanced hunting.”

Illness and Healing

It was believed that illness was caused primarily by animals. Thus healing also had to come from animals. In his book A Law of Blood: The Primitive Law of the Cherokee Nation, John Reid reports:

“All human diseases were imposed by animals in revenge for killing and each species had invented a disease with which to plague man.”

The fish and reptiles, for example, would retaliate against humans by sending bad dreams that would cause them to lose their appetite, sicken, and die. To prevent disease, hunters would apologize to the animals which they killed and explain their great need.

Purity

An important concept in Southeastern Indian spirituality is that of purity. Maintaining purity involves the avoidance of pollution. Pollution occurs when things from two different categories – such as fire and water – are allowed to physically mix. Thus the maintenance of purity involves the separation of opposing forces or items.

One of the ways of overcoming pollution is to bathe early in the morning before eating any food. Among the Southeastern tribes, everyone went to the river in the morning to bathe. This ceremonial bathing was done year-round, even when the bathers had to break the ice on the river.

Green Corn Ceremony

One of the important ceremonies among the people of the Southeastern Woodlands was the Green Corn Ceremony or puskita (which became Busk in English) which was an expression of gratitude for a successful corn crop. The ceremony was held after the harvest and was a time for renewing life. Old fires were put out, the villages were cleaned, and worn pottery was broken. This was a time of forgiveness: debts, grudges, and adultery were forgiven. According to Theda Perdue and Michael Green:

“Held when the crop first became edible, the Green Corn Ceremony celebrated both the crop and the communitarian ethic that shaped their lives.”

The Green Corn Ceremony was also associated with the quest for spiritual purity. Fasting – one of the principle ways of attaining purity – was an important element in the ceremony.

Sacred Places

Land often has special spiritual significance for Indian people. Among the Cherokee there are a group of spirits known as the Immortals who are invisible, except when they want to be seen. The Immortals have town houses within the mountains, and especially within the bald mountains (those mountains on whose peaks no timber grows). The Immortals like to drum and dance. The rumbling coming from the mountains is evidence of the drumming and dancing of the Immortals within the mountains.

The Cherokee view the Little Tennessee River as a benevolent spirit whose head rests in the Great Smokies and whose feet touch the Tennessee River. According to anthropologist Peter Nabokov:

“For Cherokee who bathed in his body, who drank from him and invoked his curative powers, the Long Man always helped them out.”

Nabokov also writes:

“At every critical turn in a man’s life, the river’s blessings were imparted through the ‘going to the water’ rite, which required prayers that were lent spiritual force with ‘new water’ from free-flowing streams.”

The Traditional Cherokee Family

When the Europeans began their invasion of the Americas, the Cherokees were an agricultural people whose villages could be found throughout the American Southeast. Cherokee families were based on matrilineal clans. Matrilineal clans are extended family groups with names, tradition, and oral history. Membership in each clan is through the mother: you belong to your mother’s clan. To be without a clan was to be without human identity. The clan is also exogamous, which means people cannot marry a person from their own clan.

With regard to the Cherokee family, historian John Finger, in his book The Eastern Band of Cherokees 1819-1900, says:

“Most incomprehensible of all to non-Indians was the Cherokee family system.”

With regard to inheritance, the matrilineal system meant that children did not inherit from their fathers. Instead, men had a special relationship with their nephews – their sisters’ children – as these were members of their clan.

Folklorist George Lankford, in his book Native American Legends: Southeastern Legends: Tales from the Natchez, Caddo, Biloxi, Chickasaw, and Other Nations, writes:

“Another consequence of matrilineality, which both outraged and delighted Europeans, was that unmarried women were free to seek pleasure or children from anyone they chose.”

The Clans

The Cherokee had seven clans:

  • Blue: (A ni sa ho ni) Also known as the Panther or Wild Cat clan
  • Long Hair: (A ni gi lo hi) The Peace Chief was usually from this clan
  • Bird: (A ni tsi s kwa)
  • Paint: (A ni wo di) Many of the medicine people were from this clan
  • Deer: (A ni ka wi)
  • Wild Potato: (A ni ga to ge wi) Also known as the Bear, Racoon, or Blind Savannah clan
  • Wolf: (A ni wa yah) Many war chiefs came from this clan

Looking at the Cherokee clans from a legal perspective, law professor John Reid, in his book A Law of Blood: The Primitive Law of the Cherokee Nation, reports:

“Clanship was the most fundamental of all Cherokee legal rights. Membership was too exact to be legally challenged.”

Fathers had no official relationship to their children because their children belonged to a different clan. Fathers might love their children and provide them with some care, but still the children belonged to the mother’s clan. A father did not have the right to punish his children. In fact, if a father were to harm his children, the children’s clan (that is, the clan of their mother) could hold him responsible.

The traditional roles of uncles—more specifically, the mother’s brothers—was very important in Cherokee culture. Law professor John Reid writes:

“Avuncular responsibility was the keystone of Cherokee education. So too was avuncular authority.”

For a young boy, this meant that the most important men in his childhood were his uncles, not his father. In her book Seven Clans of the Cherokee Society, Marcelina Reed writes:

“The primary responsibility for discipline and instruction in hunting and warfare rested not with the child’s father but with his maternal uncle.”

Law professor John Reid puts it this way:

“The uterine uncle was, by necessity of law as well as social custom, the disciplinary and tutorial authority in the family.”

If there was no blood uncle, then another male from the mother’s clan would assume these duties (known as a classificatory uncle).

Marriage

Among the Cherokee, individuals were not allowed to marry members of their own clan or members of their father’s clan. They were, however, encouraged to marry members of their maternal grandfather’s clan or their paternal grandfather’s clan. In general, marriage was regulated by the women of the village.

Marriage was not seen as a binding contract and divorce was common. In his book The Qualla Cherokee: Surviving in Two Worlds, sociologist Laurence French writes:

“Monogamous marriages were of short duration among the early Cherokee with some sources suggesting that it was not unusual for individuals to change spouses as frequently as three or four times a year.”

In their book The Columbia Guide to American Indians of the Southeast, Theda Perdue and Michael Green report:

“When marriages dissolved, husbands simply left their wives and children, who were not blood relatives, and returned to the houses of their mothers and sisters.”

In examining the non-Indian notion that Cherokee girls could be required to marry someone, law professor John Reid writes:

“Cherokee marriage was not binding on either husband or wife, and to imagine that a girl could be compelled to wed ignores the fact that no relative—neither her mother, her uncles, nor her brothers—exercise compulsory authority over her.”

Cherokee men often married women from outside of their own village. The men were expected to live in their wives’ village (matrilocal residence).

Premarital chastity was unusual and there were no cultural prohibitions against fornication or adultery.

Among the Cherokee, a widow was encouraged to marry the brother of her deceased husband. Similarly, a widower was expected to marry the sister of his deceased wife.

The Cherokee wedding ceremony was brief and simple. According to Grace Steele Woodward, in her book The Cherokees:

“The ritual merely entailed the exchange of gifts, in lieu of vows, between a bride and her groom, and lasted but half an hour.”

Children and Birthing

With regard to Cherokee child birth, historian Theda Perdue, in her book Cherokee Women: Gender and Culture Change, 1700-1835, reports:

“During delivery, a woman stood, knelt, or sat, but she never gave birth lying down. Usually no one bothered to catch the baby, who simply fell on leaves beneath the mother.”

It was a good omen if the child fell on its back and a bad omen if the child fell on its breast.

Among the Cherokee as well as the other tribes, deformed infants were simply abandoned in the woods. Infanticide was used as a means for controlling population growth. Among the Cherokee, however, only the mother had the right to abandon a child.

Georgia, the Cherokee, and the Execution of Corn Tassel

The United States has never been particularly comfortable with the idea of Indian nations and Indian people within its territorial boundaries. Like the British before them, the United States viewed Indians as impediments to “progress” who needed to be removed to make way for non-Indian economic development. At the beginning of the nineteenth century, President Thomas Jefferson recommended that all Indians be removed from the United States and given reservations west of the Mississippi River. In 1830, this recommendation was translated into reality with the passage of the Indian Removal Act. In Georgia, the greed for Cherokee land, coupled with racism, resulted in the execution of Corn Tassel, a Cherokee man.

What Came Before:

In 1827, the state of Georgia passed a series of resolutions to take control of Indian lands within the state. The resolutions insisted that the Cherokee had no legitimate claims to land within the state and declared that Georgia law was to apply to the Cherokee. Theda Perdue and Michael Green, in their book The Columbia Guide to American Indians of the Southeast, report:

“Denouncing the Cherokee constitution as outrageous and claiming that the establishment of a sovereign Cherokee republic was unconstitutional, the legislature announced that Georgia had sovereignty over all the lands within its boundaries and asserted that it could take possession of the country occupied by Indians whenever and by whatever means it pleased.”

Georgia denied the validity of treaties with the United States that recognized tribal sovereignty and land rights. Georgia also demanded that the federal government honor the Compact of 1802 and remove the Cherokee from Georgia.

President Adams warned Georgia that these actions violated the treaties between the United States and the Indians. Furthermore, the United States, according to the President, would use military force to uphold these treaties. In response, Georgia called up its militia and occupied some Creek towns. The federal government backed down from any confrontation.

In 1828, the Georgia House of Representatives passed a resolution requesting the governor to ask the president of the United States to remove all Indians from the state.

In 1828, the state of Georgia also adopted legislation which extended state control over all Cherokee lands within the state. The new legislation declared all Cherokee laws to be null and void and prohibited Indians from testifying against non-Indians. As a result, groups of non-Indians invaded Cherokee country, taking Cherokee cattle and horses, assaulting those who resisted, and taking possession of Cherokee homes. According to the law, all Cherokee were to leave the state by 1830 unless they were given permission to stay by the Georgia legislature.

The following year, the state of Georgia enacted legislation which declared

“that no Indian or descendant of an Indian residing within the Creek or Cherokee nations of Indians, shall be deemed a competent witness in any court of this state to which a white person may be a party.”

Anthropologist Charles Hudson, in his book The Southeastern Indians, describes the result:

“In effect, this gave the whites – any white – a license to steal and do mayhem.”

In preparation for removal, President Andrew Jackson in 1830 ordered federal troops to be withdrawn from Cherokee lands in Georgia, leaving the Cherokee at the mercy of state residents at the time when Georgia was surveying the lands to open them for non-Indian settlement. At this same time, the Georgia Guard was created. Walter Echo-Hawk, in his book In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, reports:

“To enforce Georgia’s growing body of anti-Cherokee laws, a special paramilitary force was created—the infamous Georgia Guard. Its mission was to enforce state law within the Cherokee Nation, arrest violators, ‘protect’ Cherokee gold mines, and otherwise harass and intimidate the Indians.”

In a report for the Niles Weekly Register, Colonel Gold (whose daughter was married to Elias Boudinot, the editor of the Cherokee Phoenix) reported that the Cherokee afford

“strong evidence that the wandering Indian has been converted into the industrious husbandman; and the tomahawk and rifle are exchanging for the plough, the hoe, the wheel, and the loom, and that they are rapidly acquiring domestic habits, and attaining a degree of civilization that was entirely unexpected, from the natural disposition of these children of the forest.”

The Cherokee National Council met in New Echota even though state law forbade it. The council unanimously adopted resolutions protesting removal.

The Cherokee sent a delegation to Washington, D.C. to present their grievances against the state of Georgia. The delegation included Richard Taylor, John Ridge, and William Shorey Coodey. In Washington, however, the Secretary of War refused to recognize them as a legally constituted delegation as they had not come with authority to discuss a removal treaty.

In Washington, D.C. President Andrew Jackson delivered a special message to the Senate. In his book Indian Removal: The Emigration of the Five Civilized Tribes, Grant Foreman reports:

“He frankly announced himself as the champion of Georgia in her controversy with the Indians and as frankly disclaimed any intention to enforce the treaties made by the government with these Indians for their protection, wherein they conflicted with the pretensions of Georgia.”

In 1830, the Georgia state governor issued a proclamation prohibiting Indians from taking any more gold from their lands. According to the proclamation, the state had the right to all gold and silver found on Indian lands.

Corn Tassel:

To deal with the state of Georgia, Cherokee chief John Ross hired the Georgia law firm of Underwood and Harris and the Baltimore law firm of William Wirt. Wirt was a former attorney general and was described as “the country’s greatest expert in Indian law.” Wirt urged the Cherokee to file a case which would test their rights in the Supreme Court.

The test case involved Corn Tassel (Corn Tassels) who killed another Indian on Cherokee land. In spite of Cherokee jurisdiction, Corn Tassel was tried in a County Superior Court, found guilty, and sentenced to hang. Attorney Walter Echo-Hawk reports:

“He was prosecuted under a set of state laws enacted to harass, intimidate, and drive the Cherokee Nation out of Georgia. The Georgians wanted Cherokee land. And they wanted the Cherokee to leave.”

The case was appealed and a panel of state judges found that the state had full criminal and civil jurisdiction over the Indian tribes within their boundaries. Furthermore, the panel found that the British prior to the American Revolution had held title to the land by right of discovery. In the appeal, the Cherokee argued that the extension of Georgia laws over the Cherokee was unconstitutional as this violated the Treaty of Hopewell which was the supreme law of the land. The state, on the other hand, asserted that the treaty was void because the federal government had no right to treat with Indians within the limits of the state. According to the state, the Cherokee held no political or property rights and that Indian tribes were inferior. Walter Echo-Hawk reports:

“Their Tassels opinion espoused a dark southern view of Indian rights—an amoral world where aboriginal affairs are governed exclusively by the states without federal interference, in which Indians are an underclass; a place where treaties are void and tribes hold no political, property, or human rights.”

Wirt appealed to Chief Justice John Marshall who granted a writ of error and ordered the state to appear before the Supreme Court in Washington. Instead of complying, The Georgia legislature was called into special session and voted to defy the writ and to hang Corn Tassel. Governor Gilmor told the legislature that the Supreme Court had no jurisdiction to intrude on Georgia and he promised to disregard orders from the Court. Walter Echo-Hawk reports:

“Since Corn Tassels’s appeal to the United States Supreme Court had been granted, his execution should have been stayed. However, defiant and fearful Georgia could never allow the high court to review the state’s spurious race laws.”

Two days later Corn Tassel was hung. Walter Echo-Hawk reports:

“Corn Tassels had to die posthaste so Georgia could safely evade federal judicial review and continue its repugnant policies without outside interference from Washington do-gooders.”

Arresting Christian Missionaries

One of the central themes of United States policies with regard to American Indians is the need to convert them to Christianity and to repress traditional Indian practices. While many Indians have been jailed for practicing traditional religions, it is interesting to note that one of the landmark Supreme Court cases in Indian law stemmed from the arrest of Christian missionaries among the Cherokees. The missionaries were not arrested by tribal authorities, but by the state of Georgia.

 Background:

The State of Georgia in 1831 passed a law forbidding non-Indians to live in Cherokee country without a license and notified the missionary boards serving the Cherokees that it was now illegal for a non-Indian missionary to be in Cherokee country unless he had taken an oath of allegiance to Georgia and had obtained a special permit from the governor.

The Georgia Guard, a paramilitary group created specifically to impose Georgia law on the Cherokee, invaded the Cherokee capital of New Echota and arrested several non-Indians, including missionaries. The missionaries were soon released because they served as postmasters at their missions, and were, therefore, federal agents and not subject to the laws of Georgia. One of the missionaries who was arrested and then released is Samuel A. Worcester, whose friendship with Elias Boudinot (also known as Buck Wati, or Galagina), the editor of the Cherokee Phoenix, had earned him many enemies in Georgia.

Worcester was arrested again after he returned to New Echota to be with his sick wife. Along with ten other non-Indian missionaries, Worcester was tried for violating Georgia law, quickly found guilty, and sentenced to four years of hard labor.

The eleven missionaries were chained together and forced to march to prison. In spite of their religious principles which forbade travel on Sunday, they were forced to march on Sunday and were refused religious services. When they reached the prison at Milledgeville, the eleven were offered a pardon in exchange for taking an oath to sustain the efforts of Georgia against the Cherokee or to abandon their missionary efforts and leave the state. Nine of the men took the pardon. Samuel Worcester and Elizur Butler did not. In her book Althea Bass Cherokee Messenger,describes the attempt to have these two men agree to the pardon:

“For hours the two men were urged to accept the terms accepted, for the sake of expediency or necessity, by the others; and at intervals the gate of the prison was opened and closed again, grating on its iron hinges with a sound intended to produce terror in the hearts of the listeners.”

In spite of having a sick wife at home, Worcester maintained his support for the Cherokees and was assigned to prison labor. Prior to his arrest, the American Board of Commissioners for Foreign Missions had written to Worcester, telling him that if he were to be arrested and imprisoned this would rouse the whole country. According to the Board:

“You would not only benefit the Cherokees, but your case would be known through the civilized world. You would do good to the poor and oppressed everywhere.”

The missionaries appealed their conviction. This became the vehicle for bringing a test case to the Supreme Court.

The Supreme Court:

The case of the missionaries reached the U.S. Supreme Court in 1832. In Worcester versus Georgia, the Supreme Court decision written by Chief Justice Marshall, maintained that the Cherokee were a nation separate from the jurisdiction of the state. In his book In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, attorney Walter Echo-Hawk reports:

“Rejecting the South’s dark version of Indian law, the Marshall Court ruled that Georgia had no right to tread on the sovereignty of the Cherokee Nation or to take its land.”

The Court described Indian nations in the same sense as all other nations of the earth. According to Chief Justice Marshall:

“The Cherokee nation, then, is a distinct community, occupying its own territory, with boun­daries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress.”

Marshall also stated that the Georgia was “repugnant to the Constitution, laws, and treaties of the United States.” Chief Justice Marshall wrote that

“the settled doctrine of the law of nations is, that a weaker power does not surrender its independence—its right to self-government, by associating with a stronger and taking its protection.”

He went on to say that the relationship between the United States and the Cherokee

“was that of a nation claiming and receiving the protection of one more powerful, not that of individuals abandoning their national character, and submitting as subjects to the laws of a master.”

In summarizing Marshall’s view of Indian relations within the United States, in his book American Indians and the Law, law professor Bruce Duthu writes:

“Marshall’s opinion makes clear that the Constitution contemplates two sets of bilateral relations, one bilateral relationship between the national government and the several states, and another between the national government and Indian tribes.”

In the same decision Justice McLean wrote:

“The exercise of the power of self-government by the Indians within a State, is undoubtedly contemplated to be temporary.”

The Cherokees were elated by the decision. Elias Boudinot wrote to Stand Watie:

“It is a great triumph on the part of the Cherokees so far as the question of their rights were concerned. The question is forever settled as to who is right & who is wrong.”

While the power of law seems to be in favor of Cherokee sovereignty, the political reality is quite different. In his book Native American Tribalism: Indian Survivals and Renewals, D’Arcy McNickle points out:

“Unfortunately for the Cherokees, the executive branch of the government was not obliged, or interpreted to oblige, to uphold the decision of the Court.”

Althea Bass puts it this way:

“The supremacy of the Supreme Court, it appeared, was not a matter for the President’s concern.”

Attorney Mark Scherer, in an article in Chronicles of Oklahoma, writes:

“With President Andrew Jackson’s implicit indulgence, the state of Georgia effectively annulled both the letter and the spirit of the Court’s decision.”

Ignoring the ruling of the Court, Georgia refused to release Worcester and the other missionaries from prison.