Reprint: American Indian Law and the Spirit World

REPRINT: AMERICAN INDIAN LAW AND THE SPIRIT WORLD Rennard Strickland As this special dedication issue dives into the testimonials in honor of Professor Strickland, the incoming Board has decided to include a work by Professor Strickland, to share his passion with you, the reader, in his own words. This article, written by Professor Rennard Strickland, was first published in the American Indian Law Review’s (AILR) very first publication (1–1) in 1973. This article has been reproduced as a “hello” from the beginning of AILR and a “goodbye” to Professor Strickland. Best wishes, Samantha A. Tamura, Editor-in-Chief of AILR Published by University of Oklahoma College of Law Digital Commons, 2022 REPRINT: AMERICAN INDIAN LAW AND THE SPIRIT WORLD* Rennard Strickland** Lieutenant Henry Timberlake, a British Officer assigned to the American Indian country in the mid-eighteenth century, wrote that [Indian] “government, if I may call it government . . . has neither laws nor power to support it . . . .” An early traveler, William Fyffe, reported that Indian “government is not supported by laws and punishments as among us.” Similarly, Captain Raymond Demere, commander of Fort Loudon, wrote to Charles Town in 1757 that “[T]here is no law or subjection amongst them.”1 Timberlake and his contemporaries were limited by the short-sightedness which afflicted most early observers of the traditional American Indian legal systems. Englishmen were looking for native versions of British courts and, when they saw no red chief justices or Indian barristers, concluded, in a supreme gesture of ethnocentrism, that the American Indians had no system of law. In truth, the American Indian conception of law was simply different from the more traditional Western idea of law. This essay examines the traditional legal system of one of the North American Indian tribes, the Cherokees. The aim is to picture traditional jurisprudence as it existed before substantial modification through the introduction of alien economic and social concepts. American Indian legal studies are not new. When Llewellyn and Hoebel merged the strengths of scientific anthropology and American legal realism in The Cheyenne Way, their classic study of jurisprudence on the American plains, North American Indian culture fully emerged as a laboratory for the study of legal institutions. John Phillip Reid recently focused upon the Cherokee law * Originally published at 1 AM. INDIAN L. REV., no. 1, 1973, at 33. ** B.A., Northeastern State College (1962); J.D., University of Virginia (1965); M.A., University of Arkansas (1966); S.J.D., University of Virginia (1970). Associate Professor of Law, University of Tulsa College of Law. Research on this essay was assisted with a grant from the American Bar Foundation Fellowship Program in Legal History. 1. H. TIMBERLAKE, THE MEMOIRS OF LIEUT. HENRY TIMBERLAKE (Samuel Cole Williams ed.), 93. William Fyffe, Letter to Brother John, Feb. 1, 1761, Thomas Gilcrease Institute, Tulsa, Oklahoma. Captain Raymond Demere, Letter to Charles Town 1757, Cherokee Documents Collection, Indian Heritage Association, Muskogee, Oklahoma. Students interested in specific legal institutions of the traditional Cherokees should read John Phillip Reid’s excellent study of early tribal law. 249 https://digitalcommons.law.ou.edu/ailr/vol46/iss2/5 250 AMERICAN INDIAN LAW REVIEW [Vol. 46 ways in A Law of Blood: the Primitive Law of the Cherokee Nation, his major study of primitive jurisprudence.2 This study, by contrast with the Reid work, focuses upon the Indian conception of law as a part of the tribal spirit world. The Cherokees were an Iroquoian people whom ethnologists classify as Southern Woodland Indians.3 At the time of the white arrival their home was in the Appalachian Mountain highlands where they lived in scattered villages. The Cherokees were hunters, fishers, farmers, and warriors. They were a settled people whose lifestyle contrasted sharply with the stereotype nomadic buffalo hunters of the plains. To the Cherokee, law was the earthly representation of a divine order. The Cherokee did not think of law as a set of civil or secular rules limiting or requiring actions on their part. Public consensus and harmony rather than confrontation and dispute, as essential elements of the Cherokee worldview, are reflected in the ancient concepts of the law. The ongoing social process could not, in the Cherokee way, be manipulated by law to achieve policy goals. There was no question of man being able to create law. To the Cherokee, the norms of behavior were a sovereign command from the spirit world. Man might apply the divinely ordained rules but no earthly authority was empowered to formulate rules of tribal conduct. The Cherokee law was centered in the priestly complex of the native tribal religion. The recitation of the law was a high religious ceremony. Among the ancient Cherokees there was an office of tribal orator, a priest who was sometimes called the “beloved man.” The orator’s duties included, among others, the delivery of the laws of the Cherokees at the annual busk of first-fruit celebration. Dressed in the orator’s costume and wearing the wings of a raven in his hair, the law-giver must have been an impressive and important figure. John Haywood in his Natural and Aboriginal History of Tennessee reports observations of the recitation of the law: The great beloved men or high priest addresses the warriors and women giving all the particular and positive injunctions, and negative precepts they yet retain of the ancient law. He uses very 2. J. REID, A LAW OF BLOOD: THE PRIMITIVE LAW OF THE CHEROKEE NATION (1970). The major point of distinction between our interpretations of early law centers around the role of the religious complex in the Cherokee legal system. 3. For general history of the Cherokees see H. MALONE, CHEROKEES OF THE OLD SOUTH (1956); M. L. STARKEY, THE CHEROKEE NATION (1946); E. B. PIERCE and RENNARD STRICKLAND, THE CHEROKEE PEOPLE (1973); E. STARR, STARR’S HISTORY OF THE CHEROKEES (J. Gregory and R. Strickland eds., 1968); T. WILKINS, CHEROKEE TRAGEDY (1970); G. S. WOODWARD, THE CHEROKEES (1963). Published by University of Oklahoma College of Law Digital Commons, 2022 No. 2] REPRINT: INDIAN LAW & THE SPIRIT WORLD 251 sharp language to the women. He then addresses the whole multitude. He enumerates the crimes they have committed, great and small, and bids them look at the holy fire, which has forgiven them. He presses on his audience by the great motives of temporal good, and the fear of temporal evil, the necessity of a careful observance of the ancient laws . . . .4 When the orator spoke the law, he was reading the meaning of history and tradition contained in the tribal wampum. He held the ancient and sacred wampum belts in his hand. At the earliest period the laws were interpreted from divining crystals whose surface might picture the events of the forthcoming year. In later times (...truncated)