It is axiomatic that civilization cannot exist without a trusted, functioning system for resolving disputes and administering justice. The Cherokee people had such a functioning system, grounded in their own beliefs and culture. But by the early 1800s, the Americans were winning the fight to take over Cherokee lands in the Southeast. As they struggled to retain their land and their way of life while coping with American power, the Cherokee people formed the Cherokee Nation, based in part on the Anglo-American model. This was a significant shift, as historically, the Cherokee were grouped in clans and the notion of a sovereign style of government was a foreign one. In 1823, the Cherokee Supreme Court was formed, and the Nation subsequently brought actions in U.S. courts. How useful these strategies proved is debated by scholars. The attempt to use the U.S. court system to enforce their rights largely failed. Following the enactment of the Indian Removal Act in 1830, and the signing of a treaty despite vociferous objections by many Cherokee, the vast majority were “removed” to designated “Indian Territory” in what is now Oklahoma. The last of the journeys west is commonly known as the Trail of Tears. Thousands died during the forced exodus. An American soldier reported that he “fought through the civil war and [has] seen men shot to pieces and slaughtered by [the] thousands, but the Cherokee removal was the cruelest work I ever knew.”1
The Cherokee Supreme Court: 1823–1835 (Carolina Academic Press, LLC, 2020) is a scholarly and tightly packed book in which Judge J. Matthew Martin, a former judge in the Tribal Court of the Eastern Band of the Cherokee Indians, examines the creation and functioning of the Cherokee Supreme Court during a pivotal time in Cherokee and American history. It is a deep dive into the creation and function of a unique and meaningful dispute resolution system that is both familiar and foreign. It is not an easy read and requires some background knowledge, but the reward is a fascinating glimpse into a relationship and era not widely studied or understood.
The primary source for Judge Martin’s work is “A Record Book of the Proceedings of the Supreme Court of the Cherokee Nation,” which he refers to as the Judgment Docket. Roughly half of the book’s 228 pages contain copies of the docket entries, written in the legal American English used at the time. In the other half, he tells the stories behind some of the entries with the help of excerpts from the Phoenix newspaper, the Cherokee Nation Constitution, and historical texts.
I am a product of the California public schools. Once I passed fourth grade, and its California history curriculum, little attention was paid to Native history. Law school was grounded, of course, in the Anglo-American judicial system. As a lawyer working on occasion in juvenile court, I learned about the Indian Child Welfare Act, but virtually nothing about tribal courts. It was not until I became an administrative law judge, a student at the National Judicial College, and active in the American Bar Association that I gained any significant awareness of the legal struggles of Native people. And in no way does this mean I can answer even the most basic questions. As embarrassing as this is, I’m confident that I have plenty of company, even within the legal community.
Judge Martin acknowledges this ignorant state of affairs and accordingly provides a helpful introduction that assists the reader to place in context and process the detailed information that follows. He sets the stage of the court’s creation in its place and time. He describes the leaders who became the judges, a remarkable group of men who straddled two very different worlds. The introduction continues with an overview of the 1820 origins of the Western-style court system created by Cherokee leaders. It had to have been an extremely difficult, uphill battle. There was no written language until Sequoyah devised a syllabary in 1821, which was not adopted by the Nation until 1825.
The Judgment Docket format is familiar, if sometimes difficult to decipher: a caption that includes the names of the parties, date, type of case, and name of the judge or an indication of jurors. Sometimes, a case is dismissed on procedural grounds by the ruling “no bill found.” Cases are sometimes continued. Findings are generally brief and to the point; for example, David Quinton Sr. was charged “with horse stealing.” The finding is, “The Court acquitted the Dft of the above charg [sic.]”
Judge Martin researched the stories behind some of the entries, which he uses to illustrate the complexities of the court’s operations. The judges strove to incorporate legal standards and practices that would demonstrate the court’s value to the Americans while at the same time encouraging Cherokee acceptance by integrating certain cultural norms. A primary example is the area of women’s rights. At a time when American women were only gradually being considered as other than the property of their male relatives, Cherokee women enjoyed different societal roles. The story of Elizabeth Pettit, a Cherokee, and James Pettit, described as white, is one such illustration.
A Judgment Docket entry from the October term in 1829 is typically brief and to the point. Elizabeth sued James for “Debt on contract” and the court found “for the Plaintiff sixty four dollars to be paid in young cattle at valuation.” [Emphasis in original.] Behind this ruling was a marriage in distress. James had placed a classified ad in the Phoenix stating that Elizabeth had left the family home without cause and cautioned “against harboring and protecting her or forming any bargains or contracts with her. . . .” Elizabeth wrote a letter to the editor to “let a generous public know my reasons for leaving his lodging. I did it when I was ordered.” She also alleged that James had “killed nearly all of my stock” and asked for her side of the story to be published. Meanwhile, James had taken another wife, and bigamy was illegal in the Nation. (At the time, Cherokee men were allowed more than one Cherokee wife, but white men were not.) When James did not pay according to the ruling, the National Committee issued a warrant for him charging bigamy and mistreatment of Elizabeth. As Judge Martin relates:
A summary trial before the Legislative Council immediately ensued, where the Supreme Court’s verdict was augmented significantly. “[It] was decided that Mrs. Pettit had a sufficient provocation to leave Mr. Pettit’s house. Additionally, Pettit was fined $500.00 and ordered removed from the plantation in favor of Elizabeth. Acting swiftly, the marshal had Pettit’s crops, cattle, and an enslaved person named Gabriel up for sale to satisfy the fine, which was to inure to the benefit [of] Mrs. Pettit.” [p. 45]
The status of women in the Cherokee Nation was consistent in many ways with modern American values. This is not the case for the institution of slavery. As the inclusion of enslaved person Gabriel in the Pettit sales order demonstrates, the Cherokee participated in the African slave system. This was one of the ways that the Nation adapted to the law and culture in the Southeast prior to the Civil War. The Nation utilized the American system of recordation to assist slaveholders to protect their property interests in those enslaved. And the Judgment Docket includes many cases grounded in ownership and payment disputes as well. An example is “The Administrators of Dragging Canoe [deceased] vs. Peggy Pathkiller.” The court awarded the plaintiff “the negro man Simon four head of grown cows and one set of Blacksmiths tools or two hundred & seventy dollars and costs of suit.”
The integrity and acceptance of judicial decisions depend on a strong and correct factual basis. Sadly, the legal history of Native people in the United States is replete with federal court decisions based on inaccurate statements of fact. In its original ruling concerning the rights of the Cherokee Nation as opposed to the state of Georgia, U.S. Supreme Court Justice William Johnson described “Indian tribes” as “nothing more than wandering hordes, held together only by ties of blood and habit, and having neither rules nor government beyond what is required in a savage state.”2 Judge Martin’s meticulous work proves that this assertion was incorrect and contributes meaningfully to the real legal history of the Cherokee Nation in the United States. It is an invaluable resource.
1. James Mooney, Historical Sketch of the Cherokee 124 (Routledge, 2005).
2. Cherokee Nation v. Georgia, 30 U.S. 1, 190 (1831).