Million, Elmer M.

English

University of Oklahoma College of Law

American Indian Law ReviewVolume 1 | Number 11-1-1973A Law of Blood: The Primitive Law of theCherokee Nation, John Phillip ReidElmer M. MillionFollow this and additional works at: https://digitalcommons.law.ou.edu/ailrPart of the Indian and Aboriginal Law CommonsThis Book Review is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted forinclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information,please contact darinfox@ou.edu.Recommended CitationElmer M. Million, A Law of Blood: The Primitive Law of the Cherokee Nation, John Phillip Reid, 1 Am. Indian L. Rev. 103 (1973),https://digitalcommons.law.ou.edu/ailr/vol1/iss1/13BOOK REVIEWA Law of Blood: The Primitive Law of the Cherokee Nation, byJohn Phillip Reid. New York: New York University Press. 1970. Pp.340. $10.00.When a recognized scholar of American legal history writes a heavilydocumented1 study of an American Indian tribe which was popu-lous2 and prominent two and a half centuries ago as well as beinghighly regarded today,3 the result should be eminently worthwhile.It is. The author,4 with impressive academic credentials 5 and twosolid works of individual judicial biography to his credit,' did hisusual elaborate research in this anthropological and historical restudyand evaluation of the indigenous legal system (including customsand mores) of the Cherokee Nation prior to its being appreciablyaffected by the exploring and, later, invading Europeans. That hisbook does not focus on the twentieth century, or even the nineteenthcentury, is arrestingly emphasized by these sentences from its dustjacket:During the early : 9th century the Cherokees drafted their consti-tution, the model for other nations, and defended their rights in thecourts to a far greater degree than did the other tribes. The Chero-kee's request for law and their attempt to secure the rights of theAmerican Indians through litigation rather than war, have theirroots back in primitive times when they were distinctly a peopleof law. This book examines their law at the earliest period of con-tact with Europeans-their laws of the feud, marriage, property, warand international relations, as well as their constitution and govern-ment.7This reviewer was favorably impressed by this book despite re-ceiving a distinct shock from the book's second paragraph where,after quoting a latter-day Cherokee's appraisal of her ancestors as"self-confident and independent ... generous .... Fearless in dan-ger, . . ." the author stated: "The Cherokees were generous and in-dependent, but .. .they were neither self-confident nor fearless;indeed, if anything they were indecisive and pusillanimous.",, Reidthen proceeded to say "[T] he Cherokees were the least warlike of allthe great nations in the eastern half of the continent. Indeed, theother Indians thought them cowards ... and they have been recorded[as] first entering history as a defeated people, forced by the Dela-wares to flee the Ohio Valley, and finally in the late eighteenth cen-03Published by University of Oklahoma College of Law Digital Commons, 1973tury laying aside their arms forever, crushed by small bands of Ameri-can frontier irregulars."9Without doubting the author's sincerity, for he adds, I ] t is gen-erally agreed ... that the Cherokees were among the most talented,the most intelligent, and were one of the least barbarous of theAmerican nations,"'1 one might note that the author does not quotethe Tuscarora, who, because of attacks by the Cherokee, were drivenas refugees from North Carolina into the [New York] IroquoisLeague." The Catawba and the Cheraws were two other tribes whopresumably respected Cherokee valor. A tradition in the Catawbatribe was that the tribe migrated southward about the time thewhites discovered North America, reached Cherokee lands, had aday-long sanguinary battle with the Cherokee, slept on the bloodyfield, and the next morning proposed peace and brotherhood, whichthe Cherokee accepted. The Catawba thereafter wrested from theCheraws the diminishing area the Cheraws ruled.'2Cornstalk, the Shawnee chief, must not have despised the Chero-kee warrior. The very next year after his 1775 peace treaty with thewhites, ". . . continued white encroachments sent him southward...to solicit aid of the Cherokees in a proposed general Indian offen-sive." 3 The author himself writes that the Cherokees waged againstthe Creek confederacy "a costly war which lasted, off and on, from1715 to 1753.""4 Despite their relative unfamiliarity with field artil-lery, the Cherokee cavalry gave a creditable account of itself at theBattle of Pea Ridge against the Union forces, over half a centuryafter "laying aside their arms forever."The author has read as many sources as he reasonably could, in-cluding most of the best, and, testing them with a lawyer's ear forconsistency and probability, gives his readers the fruits of his exten-sive research and his own conclusions, citing the sources on which herelies. Thus he notes that "[T]he Cherokees have been classified as amixture of the Algonquin-Iroquois dolichocephalic type and theEastern and Southern brachycephals."' 5 The author describes theterrain of their Appalachian homeland noting that the Cherokeeshad no truly national government and that their 50 to 64 towns werelargely autonomous, divided into four or even five regional group-ings. They spoke three markedly different dialects (the Lower, orAlati; the Middle, or Kituhwa, and the Upper, or Atali).'" Themembers of a particular town belonged to various of the seven matri-lineal clans17 which permeated the nation, and the author con-cludes that the Cherokee could properly be called a "nation" be-cause, in the eighteenth century, "nation" was used to describe both104https://digitalcommons.law.ou.edu/ailr/vol1/iss1/13an ethnic group and a geographical area, although in the nineteenthcentury "tribe' had become the customary term to apply to an In-dian "nation," after, and presumably because, the non-Indian Amer-icans had in the interim come into contact with the nomadic West-em Plains Indians.'8 The author adds, "If any external factor gavethe Cherokees a sense of national unity, it was fear and hatred oftheir Iroquois [linguistic] cousins." 19Although the Cherokee clan system resembles that among Iro-quoian and Muskhogean tribes generally,20 the author recognizes itas central and paramount in Cherokee law, social organization, andculture:It would be impossible to classify the clan in contemporary legalterms, except to say that it was the most important unit in Cherokeeconstitutional law. As the exogamous institution [within which in-termarriage must not occur]. . . , as well as the agency responsible forthe maintenance of order and the redress of wrongs, the clan seemsto belong in the category of public law. But most of its functions,such as the education of children and the imposition of sanctions,were... private law....In actuality, the clan was too basic to Cherokee society to be dis-cussed merely by legal concepts. It was "the family writ large." Morethan a family, the clan was a corporate entity based on kinship... anarm of government to which all police power was entrusted. Mem-bership in a clan was more important than citizenship in the nation.Constitutionally speaking, there were no Cherokee citizens, onlyclan members.... An alien [once adopted by a clan, became] equalto any native-born Cherokee.2 1The children of a marriage were the relatives of their mother, notof their father, and following divorce they would stay with her, notwith him. If she died, her relatives, particularly her eldest brother,would claim and protect the children. Even during the marriage, theCherokee youth was instructed and disciplined by his mother'sbrother. The father, being a stranger to his son's clan, would have toaccount to that clan if he harmed his son, and might be killed by itif he killed his son. The author tellingly emphasizes clan importance,and its dependence [fictional in the case of adoption of an outsideror white man into the clan] on the maternal relationship, by notingthat some authorities translate the Cherokee word for "brother"(ditlu-nu-tsi) as "same mother";2 2 that the Cherokee language hadno words for reckoning kinship on the father's side;2 that among theCherokee, as in many other tribes, the relationship between brothershaving the same mother was the strongest of all kinship bonds;2, thatPublished by University of Oklahoma College of Law Digital Commons, 1973the Cherokee must not marry within his own (i.e., his mother's)clan nor within his father's clan, however distant in generations thecommon ancestor, but that a man's son and daughter by two differ-ent wives could marry each other, if belonging to different clans.2The book contains accounts of or references to many other fea-tures of Cherokee law, including clan responsibility; cities of refuge(which once encouraged the belief that the Cherokee were one ofthe Lost Tribes of Israel); infanticide (permitted to the new moth-er); inheritance; voluntary acceptance in homicide cases of com-pensation in lieu of a reprisal homicide against someone in the slainperson's clan; the equal right of men and women to speak in localcouncils (and the right of a few honored women to speak in nationalcouncils), the reaching of council decisions by consensus after thedissidents became silent or withdrew from the meeting (this princi-ple epitomizing "the Cherokees' abhorrence of any form of coer-cion""0); ostracism; and the persuasive prestige rather than thepower of Cherokee leaders.The book has no labeled preface, foreword, or introduction, buthidden between the footnotes and the tolerable index and occupyingless than a full page, is a paragraph headed "Acknowledgments" inwhich appears an otherwise unheralded but most encouragingclause: "... this first volume of a projected legal history of the Chero-kee Nation,..., 2 rElmer M. Million**AB., L.L.B., S.J.D., Professor of Law, University of Oklahoma.NOTESI. Of the book's 340 pages more than 50 are devoted to footnote citations ofsources, collected (for each chapter) near the end of the book. Except where other-wise stated, page references herein are to the book under review.2. "They are generally believed to have been the largest Indian nation in theeast" (P.6). Reid cites one authority as estimating there were 22,000 Cherokee in165o. Id. Cf. CORKRAN, THE CHEROKEE FRONTIER: CONFLICT AND SURVIVAL, 1742-62 (1962), 3: "In the Ifth Century the Cherokee was the largest Indian tribe on thefrontiers of English America; in 1755 they numbered upward of o,ooo persons,including 2,500 or 3,000 fighting men."3- Non-Oklahomans are surprised to learn that in Oklahoma the two most famousOklahomans are Sequoyah (inventor of the Cherokee syllabary) and Will Rogers(the Cherokee cowboy humorist, columnist, radio and movie star). In his own life-time, Rogers' popularity was so great in Oklahoma that an unrelated white man,William ("Bill") Rogers, won statewide election to Congress by having his ballotlisting read "Will Rogers". He served five terms, until that at-large seat was abolished.The "real Will's" son, Will Rogers, Jr., was elected to Congress from California.4. Obviously not the trader John Reid, who insisted in 1775 that lawyer Richard3o6https://digitalcommons.law.ou.edu/ailr/vol1/iss1/13Henderson specify the exact limits of the land he wanted the Cherokees to deed tohim, before asking them to sign the "path deed," Henderson retorting that after thedeed was signed he would read the boundaries. J. BROWN, OLD FRONTIERS: THESTORY OP THE CHEROKEE INDIANS FROM EARLIEST TIMEs TO THE DATE OF THEIRREMOVAL TO THE WEST (1838; Southern Publishers ed.,19 3 8) 12. Trader Reid isnot listed in the index of the volume under review.5. A.B., Georgetown University, MA., University of New Hampshire, L.L.B.,Harvard, LL.M., and J.S.D., New York University, and a member of the New YorkUniversity School of Law faculty since 196o.6. CHIEP JUSTICE: THE WORLD OF CHARLES DOE [of New Hampshire] (HarvardUniversity Press, 1967); AN AmsERicAN JUDGE: MARIADUKE DENT OF WEST VIR-GINIA (New York University Press, 1968). The latter volume grew out of the author'sJ.S.D. dissertation, and this reviewer sat on that dissertation committee.7. Emphasis supplied. If "request" jolts, substitute "quest."8. P. 4. (An obvious typographical error has been corrected).9. P. 5 The Walam-Olum (national legend of the Delaware confederation) hasthe struggle of the Algonquin Delaware with the Cherokee continue throughout thereign of three chiefs before the latter removed from their Ohio home, possibly in 13thCentury. BROWN, OLD FRONTIERS, n. 4 supra, 15.1o. Id., at note call 17, citing, inter alia, VAx EvERY, DISINHERITED: THE LOSTBIRTHRIGHT OF THE AmERICAN ImAN 11 (1966).11. P. 8, 197.12. GREGG, RT. REv. A., HISTORY OP THE OLD CHERA WS (Columbia, S. C., 1925),3. See also, REID, 171.13. BROWN, OLD FRONTIERS, n. 4, supra, 7.14. P. 9. (Emphasis supplied.) In 1750 Governor Glen found the Creek menfavoring making peace with the Cherokee, one reason being that the Cherokee war-riors had closed the Creek trade path, impoverishing the Creek towns. REID, 115 -15. P. 4, n. 8, citing Bloom, The Acculturation of the Eastern Cherokee: HistoricalAspects, 19 N.C. HIST. REV. 323 (1942).16. Pp. 6, 9, 12.17. P. 37 -18. P. 35.19. P. 8.2o. Consult HANDBooOK oP AMERICAN INDIANs NORTH OF MExICO (Hodge, ed.19 59 ),Vol. 1, 303.21. P. 37 -22. P. 38, n. 15.23. P. 4 1.24. P. 40. Cf. at 39: "The consanguine kinship existing between uterine brothersand sisters is said to have been the warmest, strongest, yet most respectful in NorthAmerican Indian culture."25. P. 42. The author makes clear, however, that this rule applies only if the twowives were not in each other's clan. If the two wives were of the same clan this wouldnot prevent the husband of one from marrying the other. If they were not of hismother's clan and not of his father's clan, one wife could be of the same clan as theother wife, but in such case their respective children could not intermarry.26. P. 64.27. P. 33 2.Published by University of Oklahoma College of Law Digital Commons, 1973

A Law of Blood: The Primitive Law of the Cherokee Nation, John Phillip Reid

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A Law of Blood: The Primitive Law of the Cherokee Nation, John Phillip Reid

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