This dissertation has been 64—13,325 microfilmed exactly as received DICKSON, John L ois, 1918- THE JUDICIAL HISTORY OF THE CHEROKEE NATION FROM 1721 TO 1835. The University of Oklahoma, Ph.D., 1964 History, general University Microfilms, Inc., Ann Arbor, Michigan THE UNIVERSITY OF OKLAHOMA GRADUATE COLLEGE THE JUDICIAL HISTORY OF THE CHEROKEE NATION FROM 1721 TO 1835 A DISSERTATION SUBMITTED TO THE GRADUATE FACULTY in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY BY JOHN LOIS DICKSON Norman, Oklahoma 1964 THE JUDICIAL HISTORY OF THE CHEROKEE NATION FROM 1721 TO 1835 APPROVED BY A M ^ rIfaA:. IÀ j ^CV ' “ DISSERTATION (XMHTTEE ACKNOWLEDGEMENT Grateful acknowledgement is extended to the follow­ ing persons vdio have helped me both directly and indirectly: Miss Gabrille W. Jones and Mrs. H. H. Keene of the Thomas Gilcrease Institute of American History and Art, Ttilsa, Okla­ homa; Miss Sue Thorton and Mrs. Reba Cox of Northeastern State College, Tahlequah, Oklahoma; Miss Louise Cook, Mrs. Dorothy Williams, Mrs. Relia Looney, and Mrs. Mar on B. At­ kins of the Oklahoma Historical Society; and to Mrs. Alice Timmons of the Phillips Collection as well as the entire staff of the University of Oklahoma Library. Particularly, I would like to thank Mr. Raymond Pillar of Southeastern State College Library for his help in making materials avail­ able to me. I also wish to thank all members of my doctoral com­ mittee at the University of Oklahoma and also President Allen £• Shearer, Dr. James Morrison, and Dr. Don Brown of South­ eastern State College. Without their consideration, the task might not have been accomplished. Special gratitude and acknowledgement is offered to Dr. A. M. Gibson, Associate Professor of History and Head of the mnuscripts Division at the University of Oklahonm, who has directed this work which was prepared in partial fulfill­ ment of the requirements for the doctor's degree at the iii iv University of Oklahoma. His insistence on high standards of research and his patience in reading the material, has been a great inspiration to me. In concluding I would like to give special thanks and acknowledgement to Mrs. Marvin Layman who has spent many long hours typing in order for this work to reach final form and to my wife, without ^ ^ s e help, this study would not have been completed. TABLE OF CONTENTS Page LIST OF ILLUSTRATIONS............... vi Chapter I. INTRODUCTION AND EARLY HISTORY OF THE CHEROKEES ............................. 1 II. CLANS AND TOWNS .......................... 13 III. GOVERNMENT, CITIZENS, AND C O U R T S ........ 43 IV. THE TOWN CHIEF AND C O U N C I L ............ 76 V. CHARITY, MARRIAGE, AND PROPERTY ........ 122 VI. ADOPTION AND W A R ...................... 150 VII. BLOOD REVENGE: I£X T A L I O N I S ............ 185 VIII. THEORY, TRIAL PRACTICE, AND CLAN JURISDICTION ......................... 210 IX. TREASON, THEFT, AND AMNESTY ............ 249 X. CHANGING TIMES: 1785 TO 1822 ............ 279 XI. THE HIGH COURT OF THE CHEROKEES AND THE NATIONAL COUNCIL ..................... 315 XII. THE LEGAL STATUS OF THE CHEROKEENATION . 347 BIBLIOGRAPHY ..... .......... ........ 387 LIST OF ILLUSTRATIONS Figure Page 1. Cherokee Settlements, 1762-1776 ....... 2 2. Timber lake ' s Nap of the Overhill Country . 33 3. Seating Order in a Cherokee Council House . 98 4. Scalps Dressed for the Scalp D a n c e ........... 184 5. Cherokee Judicial Districts ......... 299 6. Attorney's License to Practice Law in the Cherokee Nation, 1876 ............ 338 7. An Allotment Deed, 1906 ............ 386 CHAPTER I INTRODUCTION AND EARLY HISTORY OF TSE CHEROKEES The Indian tribes of North America for the most part operated under a simple, loose type of political association. Only the famous Iroquois Confederacy developed an elaborate government and permanent legal pattern. The Cherokees, lo­ cated south of the Ohio, while never achieving the national unity of their northern cousins, did attain a remarkable level of law and government. Early trappers and explorers who journeyed among the southeastern tribes were deeply impressed with the Cherokees in this regard. Historians have paid high tribute to Cherokee political and legal achievements. Such regard finds expression in the words of Charles C. Royce: The Cherokee Nation has probably occupied a more promi­ nent place in the affairs and history of what is now the United States . than any other tribe, nation, or confederacy of Indians, unless it be possible to ex­ cept the powerful and warlike tribe of Iroquois or Six Nations of New York.1 Albert Bushnell Hart has added that they were a "conspicuous element in the history of North America and ^Charles C. Royce, "The Cherokee Nation of Indians," Fifth Annual Report of the Bureau of American Ethnology (Washington; U. S. Government Printing Office, 1887), Part 2, p. 121. «rrt 0» KNo«vu ovimhLL^SËTriiU^Ts CAROLINA MIDDL mCMi \yALL£fy4( 'u m f « )S£rrLé^£NTS ' SOUTH lAROLINA Cherokee Settlements,I762-I776 From jhe Eastern Cherokees by William H. Gilbert 3 were probably the largest single tribe in the eastern United States."2 Certainly, their being recognized as a force in American history, and their determined and sustained main­ tenance of a national identity, despite the vicissitudes of %dxite contact, were noteworthy achievements. A bulwark of Cherokee national identity was the tribal judicial system. %he evolution of this system as it existed from 1721 to 1835 has been selected as a topic of study. In so doing, tribal law, council proceedings, both legislative and judicial, and clan relations will be examined. During the early colonial period the Cherokee domain extended from the interlocking head-streams of the Kanawha and Tennessee Rivers southward, almost to the present site of Atlanta, Georgia, and from the Blue Ridge Mountains on the east, to the great Cumberland range on the west. Chero­ kee territory covered an area of about 40,000 square miles and included portions of the present states of Virginia, Ten­ nessee, North Carolina, Georgia, and Alabama. Their princi­ pal towns were located along the entire length of the Little Tennessee; Cherokee settlements also were situated on the headwaters of the Savannah, Hiwassee, and Bickasegee Rivers. Echota, commonly regarded as their national capital, was lo­ cated on the south bank of the Tennessee a few miles above ^Albert Bushnell Hart, Basis of American Historv (New York: Harper Brothers, Î9Ôo3, iS?. 4 the mouth of the Telllco River.^ Although it is likely that the Cherokees had occa­ sional contacts with the French and Spaniards during the sixteenth and seventeenth centuries, their first substantial experience with the Europeans came from the English. Itinerant traders from the English settlements traf­ ficked among the Cherokees beginning about 1673. The first white trader to settle permanently in the Cherokee country was Eleazar Wiggan. Arriving there about 1711, he gained their confidence and within a short time, he was affection­ ately called "The Old Rabbit. The first record of the Cherokees signing away ter­ ritory occurred in 1721 when Francis Nicholson, Governor of the Carolines, apprehensive of French activities, invited the chiefs to Charlestown. Delegates from thirty-seven towns attended. After smoking the pipe of peace, the p. 14; Walter H. Ifohr, Federal Indian Relations 1774-1788 (Philadelphia: University of Pennsylvania kess, 1933), 3; see also U. B. Phillips, "Georgia and State Rights," Annual Report of the American Historical Association. II (19Ü1), 66, ^enry T. Malone, Cherokees of the Old South. ^ People In Transition (Athens, Georgia; University of Geor­ gia Press, 1956) 6 ; earlier writers say that Cornelius Dougherty, an Irishman from Virginia, established himself as tdie first trader among the Cherokees in 1670 and spent the rest of his life with them. See John Haywood, The Natural ................. “ ^ tie- 5 Governor distributed presents and agreed to define bound­ aries and appoint an agent for them.^ Ibis meeting was important in Cherokee history not only because it marked the beginning of a long series of land cessions tdiich ceased only after all of their ancestral homes were gone, but also because it marked the beginning of a nationwide tribal organization. Responding to Governor Nicholson's request, the delegates elected from among them­ selves a principal chief \diom the Governor could look to personally as a representative of the entire nation.^ This idea of a national chief was given further encouragement a decade later by Sir Alexander Cuming. Cuming received a commission to visit the Cherokees in 1730. lieaving Charleston during March of that year, he traveled three hundred miles and arrived at Keowee, one of the lower towns on the Keowee River, about three weeks later. Going to the home of a Joseph Baker, a white trader, idio lived in Keowee, he and his party met anotiier trader Ludovic Grant, a Scotchman from Tellico, \dio had married a Cherokee woman and had lived in the nation for ten years. While in their company and, perhaps by their suggestion, a meeting was arranged with the chiefs from the nearby towns. In the course of the council, Cuming learned that Moytoy, leader of ^Royce, 0£. c^t., 144. ^Marion L. Starkey, The Cherokee Nation (New York: Alfred A. Knoff, 1946), 12; see also Malone, 0£. cit.. 26. 6 the town of Tellico, located on the Tennessee River about a hundred and fifty miles north, was to be made head chief of the town. 7 Being advised by Grant that it was a place of con­ siderable size and centrally located in the nation, Cuming expressed a desire to attend the ceremonies. En route, Cum­ ing spent each night in a different town, and from his own account of the matter he was very well received. He re­ ported to the London Daily Mail that the coronation of Moy­ toy took place at Nequassie.^ A list of the Cherokee towns prepared some thirty years later, shows the town of Nucasse to be closer in spell^g to that of Nequassie than any other town on the list.* One writer, in commenting on the loca­ tion, stated that Nequassie was located oh the present site of Franklin in western North Carolina.