Address: To Do the Right Thing: Reaffirming Cherokee Traditions of Justice Under Law

American Indian Law Review Volume 17 Number 1 1-1-1992 Address: To Do the Right Thing: Reaffirming Cherokee Traditions of Justice Under Law Rennard Strickland Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indigenous, Indian, and Aboriginal Law Commons Recommended Citation Rennard Strickland, Address: To Do the Right Thing: Reaffirming Cherokee Traditions of Justice Under Law, 17 AM. INDIAN L. REV. 337 (1992), https://digitalcommons.law.ou.edu/ailr/vol17/iss1/15 This Special Feature is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . SPECIAL FEATURES ADDRESS: TO DO THE RIGHT THING: REAFFIRMING CHEROKEE TRADITIONS OF JUSTICE UNDER LAW Rennard Strickland* No people on the North American continent are more closely identified with law than the Cherokee. Even today, whenever issues of Indian law are joined in the courts, the Cherokee removal cases of the 1820s and 1830s - Cherokee Nation v. Georgia' and Worcester v. Georgia2 - are cited. When the story of the birth of tribal constitutionalism is documented, the Cherokees are listed as the first Indian tribe to adopt a written law and establish a formal constitution. The United States, on the occasion of the two-hundredth anniversary of the United States Constitution, acknowledged the contributions of the Iroquoian peoples, of whom the Cherokees are the southern-most tribe. The legal heritage of the wampums entrusted to the Keetoowah begins at the very beginning of life on this continent. It can be said, without equivocation, that the Cherokee are truly a people of law. This morning, with the rededication of the Cherokee National Capitol, we are celebrating and reaffirming that tradition. I have taken the title "To Do the Right Thing" from an 1877 letter written by a Cherokeespeaking court officer of the Goingsnake District. The solicitor wrote to Chief Thompson: "I do not desire to keep the job just because of the salary.... It has become desirable to do the right thing. . . . ,,3 This morning I want us to visit about the law and doing the right thing. From 1808 until 1898, the Cherokee Tribe operated tribal courts based upon their own written laws, codes, and constitutions. Throughout the nineteenth century, outside observers who came into the Nation chronicled the honesty and efficiency of the system. They also noted that support for Cherokee law was nearly universal among all tribal * Professor of Law and Director, Center for the Study of American Indian Law and Policy, University of Oklahoma; Editor-in-Chief, Felix Cohen's Handbook of Federal Indian Law (1982 ed.). S.J.D., J.D., University of Virginia; M.A., University of Arkansas; B.A., Northeastern State University. This address was delivered on Oct. 12, 1991, on the occasion of the rededication of the Cherokee National Capitol in Tahlequah, Oklahoma. 1. 30 U.S. (Pet.) 1 (1831). 2. 31 U.S. (Pet.) 515 (1832). 3. Letter from Gane:nu:li:sgi Ne:wadv to Utsale:dv (Chief Thompson) (Mar. 9, 1877) (available in the Thompson Papers, Cherokee Tribal Records, Oklahoma Historical Society). This letter was published in THE SAn.ow op SEQuOYAM - SocIAl DocumErTrs oF rm CEmEoxms, 1862-1964, at 26-28 (Jack Frederick Kilpatrick & Anna Gritts Kilpatrick eds. & trans., 1965). Published by University of Oklahoma College of Law Digital Commons, 1992 338 AMERICAN INDIAN LA W REVIEW [Vol. 17 groups, from full-blood traditionalists to mixed-blood acculturationists. Since I have waived my usual speaking fee this morning, Chief Mankiller promised me I could plug one of my books. In Fire and the Spirits (available at fine book stores everywhere), I recorded many details about the operation of the Cherokee legal system and provide a chronology of key dates and a summary of the early tribal laws. Relax, you are not going to be subjected to a law professor's Socratic cross-examination and case parsing. The story is there, in the book, available for purchase in fine book stores everywhere. Suffice it to say, at the beginning of the nineteenth century, the Cherokees cast their fate into the mainstream of the American legal process. Few have done the process greater honor than the Cherokee. In the struggle to retain their ancestral homes in Georgia in the 1830s, the Cherokee awaited the decision of Chief Justice John Marshall and the Supreme Court. The Marshall court, in the famous case of Worcester v. Georgia,5 supported the Cherokee cause and reaffirmed the Cherokee belief in the legal process. Then Jackson is purported to have issued his famous challenge to the judiciary - "Marshall has made his law, let him enforce it."' 6 Marshall and the Cherokees had the law. Jackson had the troops. In historical perspective, it is as if President Eisenhower had sent troops to Little Rock to help Governor Faubus avoid integration of Little Rock Central High School after the 1954 Supreme Court Decision in Brown v. Board of Education.7 With a Supreme Court decision in their favor, fifteen thousand Cherokees were driven by General Winfield Scott and his troops out of their beloved southern mountain homelands. Only eleven thousand finished the journey; four thousand died along the trek, which we know as the "Trail of Tears." This incident is germane to our activities this morning because it vividly illustrates the Indians' historic dilemma. As soon as a tribe adapted to new ways in an effort to survive, the United States, through force of arms or legislation, destroyed what the tribe had done. The pattern was repeated again and again. At the close of the nineteenth century, the Cherokee and their brother tribes, the Creeks, Chickasaws, Choctaws, and Seminoles, had developed legal systems more just and efficient than those of most states. They stood ready to accept the dream that their negotiations had held out - admission to the Union as an Indian state. The 4. RENNAD SRIucKLAND, FRE AND THE SPIRTs: CHEROKxE LAW FROM CLAN TO CouRT ( 975). 5. 31 U.S. (Pet.) 515 (1832). 6. Joseph 0. Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 STAN. L. REv. 500 (1969); see also Anton-Hermann Chroust, Did President Jackson Actually Threaten the Supreme Court of the United States with Nonenforcement of Its Injunction Against the State of Georgia?, 4 AM. J. LE.AL HisT. 76 (1960). 7. 347 U.S. 483 (1954). https://digitalcommons.law.ou.edu/ailr/vol17/iss1/15 No. 1] REAFFIRMING CHEROKEE TRADITIONS 339 Cherokees had truly moved to a well-run, almost a model, court process and now waited for the long-promised Indian State which would culminate their historic compromise. Instead, the United States Congress and the instrument of their creation, the Dawes Commission, divided tribal lands, abolished Indian courts, and attempted (...truncated)