THE EVOLUTION OF THE CRIMINAL JUSTICE SYSTEM OF THE EASTERN CHEROKEES, 1580-1838

Before contact, the Cherokees strove to maintain individual liberty and natural harmony throughout their autonomous villages by using positive sanctions of religious purification and kinship control and negative sanctions of deference and withdrawal. In the eighteenth century, disease and a shifting economic base weakened the prestige of the priests and undermined tribal purification rites. Maintenance of trade and avoidance of conflict with the Europeans unified the autonomous villages. Cooperation among influential village headmen created a tribal-wide council; experienced diplomats emerged who, in order to maintain peace and trade, exercised coercion over individual Cherokees. By the 1790's, horse theft was the most common crime on the frontier and frequently led to widespread retaliation by both Cherokees and whites in violation of treaty provisions. The Cherokees in council passed a law in 1797 which defined the act of murder and which created the light-horse or regulating party to prevent horse theft. Institutional coercion, the regulating party, brought into council from the warrior political structure and directed by tribal chiefs, overrode kinship connections which formerly protected a horsestealer or murderer. The regulating party operated over defined territory: political contraction and centralization yielded the institutions for the making of a state. In the early 1800's, the federal agent exercised legislative, executive, and judicial functions over both Indians and whites in the Indian country. The tribe overcame political factions to protect their ancestral homeland from being sold off by individual members. The tribal council passed laws establishing a more organized permanent, paid regulating party and abolished the practice of clan revenge. The main incentive to establishing more formal institutional mechanisms over individuals was the protection of property. By 1827, the Cherokees had ratified a written constitution patterned after the federal constitution. After the discovery of gold in Cherokee territory and the presidential election of Jackson, Georgia and other states retaliated against the Cherokee assertion of sovereignty by extending state civil and criminal jurisdiction over the Cherokees. The Cherokee criminal justice system of promoting national harmony through restraint of individual liberty met with the Jacksonian ideals of individual liberty and "the union.