"I saw the helpless Cherokees arrested and dragged from their homes, and driven at the bayonet point into the stockades. And in the chill of a drizzling rain on an October morning I saw them loaded like cattle or sheep into six hundred and forty-five wagons and started toward the west....On the morning of November the 17th we encountered a terrific sleet and snow storm with freezing temperatures and from that day until we reached the end of the fateful journey on March the 26th 1839, the sufferings of the Cherokees were awful. The trail of the exiles was a trail of death. They had to sleep in the wagons and on the ground without fire. And I have known as many as twenty-two of them to die in one night of pneumonia due to ill treatment, cold and exposure..."
-Private John G. Burnett
Captain Abraham McClellan's Company,
2nd Regiment, 2nd Brigade, Mounted Infantry
Cherokee Indian Removal 1838-39
The Cherokee People are split into two broad tribal organizations or affiliations; the Eastern Cherokee, who inhabit the ancestral homelands in North Carolina and Tennessee and the by far greater in number Western Cherokee who reside on Tribal lands within the State of Oklahoma. The Cherokee refer to themselves as "Ani Yun Wiya" or ''Real People. The term Tsalagi or Tsalaki probably derives from the Creek term for the Cherokee, "Tciloki", meaning "people of different speech" or "people whose speech is different". The official Tribal designation of the Western Cherokee is United Keetoowah Band of Cherokee Indians, again located within the State of Oklahoma.
There are a number of theories regarding the origins of the Cherokee people; however, perhaps the most widely accepted school of thought around the issue of origin posits that they migrated from Northern regions into Southern Appalachia at a realtively late point in time, perhaps as late as the fifteenth century. The Cherokee speak an Iriquoian language and are thus related to the tribes of the Haudenosaunee, referred to later as the Iriquois Confederation by white settlers. Since the arrival of the first of European settlers in the sixteenth century the Cherokee had been regarded as one of the most advanced of North American Indigenous civilizations. Occupying the Southeastern corner of the current continental United States the ancestral lands were rapidly coveted by European settlers but the discovery of gold ore in present-day Georgia expedited heightened conflict with the whites in the 1830s. Despite a Supreme Court Ruling handed down by Justice Marshall the Cherokee were forcibly removed, in large part, from their homelands in Georgia. Andrew Jackson, in defiance of the High Court ruling, acerbically commented, "The Justice has made his ruling, now let him enforce it!" as he oversaw the removal of the Cherokee in one of the bleakest and most inhumane of acts in the annals of US History.
This removal of the Cherokee people from their homelands in Georgia a thousand miles to the west to the Indian Territory (present-day Oklahoma) has gone down in history as the "Trail of Tears". Thousands of people died along the trail and the internment camps set up en route prior to reaching their destination. In spite of their losses the Cherokee people quickly re-established themselves in Oklahoma and founded thriving communities centered around their new capitol of Tahlequah. In 1839 the Cherokee drafted and ratified their Constitution and began printing their own newspaper in the Cherokee language---the first of North American tribes to do so. The creation of the Cherokee writing system by Sequoyah in 1821 and the propagation of written materials and the inception and construction of a fine system of public schools, together with an high level of social organization, has led historians to refer to the period up until 1860 as the "Golden Age" of the Cherokee people.
The Cherokee Nation today is recognized as a Sovereign entity covering nearly 7,000 square miles of territory in the Northeaster corner of the State of Oklahoma. The organization of the Cherokee Nation mirrors that of other contemporary Republics, dividing authority into a tripartite system; Legislative, Executive and Judicial branches of government. Nearly 70,000 of the more than 300,000 Cherokee Tribal members live within the borders of the Cherokee Nation.
Under a revised Constitution, ratified in 1976 and approved by the Commissioner of Indian Affairs, Executive Power is vested in the Tribal Chief and a Deputy Tribal Chief presides over the Tribal Council which represents the Legislative Branch of the Cherokee Nation. Fourteen elected officials comprise the Tribal Council. The Judicial Branch is comprised of the District Courts and Court of Appeals Tribunal. The Tribunal is comparable to the United States Supreme Court and its three members are appointed by the Tribal Chief.
In 1990 the Cherokee Nation established operational parameters for its courts and introduced its own criminal penal and procedural codes.
The impetus for this presentation is the establishment of the Tribal Court Criminal Defense Clinic by the University of Washington School of Law and its Native American Law Center. The Clinic is the public defender for the Tulalip Tribes of Washington. Eight students take the year long clinic and after ten weeks of preparation are appointed as counsel to defendants in tribal court prosecutions under the supervision of the clinic director. The joint effort of the Tribes and the School of Law is a direct product of the Indian self-determination era and reflects the Tribes’decision to increase their law enforcement and tribal court capacity. The hope is to develop a defender system as part of a justice system that is not just focused solely on administering a criminal code and trying cases, but instead is part of the growing effort to deal with the underlying causes of criminal activity. This essay outlines: basic principles of federal Indian law and criminal jurisdiction within Indian country; the history of the right to counsel in criminal matters in general and within tribal courts; and, the defender program operated by the School of Law at the Tulalip Reservation. The Supreme Court’s rulings in three cases, known as the Marshall Trilogy, set the foundation for the development of federal Indian law.2 Worcester v. Georgia was the capstone of the trilogy and a case in which the State of Georgia had imprisoned Sam Worcester for violating a state law that made it illegal for non-Indians to reside within the Cherokee territory without a state permit. Chief Justice Marshall’s majority opinion for the Supreme Court rejected Georgia’s claim of authority and explained the status of Indian tribes under international and federal law in the following terms:
John Ross (October 3, 1790 – August 1, 1866), also known as Guwisguwi (a mythological or rare migratory bird),was the Principal Chief of the Cherokee Native American Nation from 1828–1866. Described by European Americans as the Moses of his people, Ross led the Nation through tumultuous years of development, relocation to Oklahoma, and the American Civil War. Between 1790 and 1865, the Cherokee attempted to become a nation state, lost their ancestral land, endured removal to the Indian Territory, and suffered the destructive Civil War, in which their early alliance with the Confederacy jeopardized their nation. Throughout these tumultuous years, the dominant political figure in the Cherokee Nation was John Ross, whose leadership spanned the entire period. As his mother was part Cherokee and belonged to the tribe, Ross belonged to her Bird Clan, as the people had a matrilineal system.[1][2] By ancestry, he was one-eighth Cherokee and seven-eighths Scots, and he grew up in both Cherokee and frontier American environments. Educated in English by white men, he was a poor speaker of the Cherokee language, but his bi-cultural background allowed him to represent the Cherokee to the United States government. He became one of the wealthiest men of the Nation. In terms of heritage, education, status, and economic pursuits, Ross closely resembled his political foes, President Andrew Jackson and Governor George R. Gilmer of Georgia. He was among the elite of the Cherokee Nation.
As is thoroughly documented, from the early sixteenth century until well into the twentieth century, American Indians suffered extreme hardship and death from the policies and practices of European settlers and governments of the United States. The recognition of these abuses – and the desire to redress these historic wrongs – has led to a range of proposals for corrective justice. These mechanisms include apology, reparations, criminal prosecution, and truth and reconciliation commissions
With the creation of the U.S. Constitution and a national government, political and legal policy-makers had to determine how to deal with Native American tribes that resided on lands granted to them by treaties. By the 1820s, U.S. policy toward what was regarded as the "Indian problem" was one of forced removal and resettlement to lands to the west. In 1830, Congress passed the Indian Removal Act (4 Stat. 411) and appropriated $500,000 for that purpose, signaling a determination to affect great changes. The Cherokee, faced with growing hostility to their presence in the state of Georgia, were the first group of Native Americans to press their legal rights all the way to the U.S. Supreme Court. The Court issued decisions in two cases that are commonly known as the Cherokee Cases: Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831), and Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832). These are landmark cases that have continued to shape judicial analysis of disputes between tribal governments and state and federal governments. A key issue in both cases was the legal and political status of Native American tribes. The Cherokee claimed they were an independent, sovereign state, akin to a nation such as France or Great Britain. The Supreme Court rejected this claim in the first case but developed a different theory of sovereignty in the second decision.
This chapter shall be interpreted and construed so as to implement the following purposes and policies: (a) To offer treatment to both juvenile and adult offenders who have committed a crime that is directly or indirectly related to a substance abuse or addiction issue; (b) To identify and recommend potential Cherokee Tribal Drug Court participants to the Cherokee Tribal Drug Court Team for legal and clinical screening as soon as possible during the sentencing or dispositional stage of the court process; (c) To strictly monitor and supervise each participant through regular and frequent drug and alcohol testing, court appearances and program requirements; (d) To impose immediate sanctions and offer immediate rewards or incentives when a participant's behavior warrants such actions; and (e) To make the participant a valued intricate part of the Cherokee Tribal Drug Court and to encourage and support each participant in the goal of individual wellness and sobriety. (Ord. No. 609, 1-25-2009).
We, the People of the Cherokee Nation, in order to preserve our sovereignty, enrich our culture, achieve and maintain a desirable measure of prosperity and the blessings of freedom, acknowledging with humility and gratitude the goodness, aid and guidance of the Sovereign Ruler of the Universe in permitting us to do so, do ordain and establish this Constitution for the government of the Cherokee Nation.
The coerced removal of the tribes of the American Southeast marked a period of less than honorable actions by the United States and created an irremovable stain on U.S. credibility in Indian Affairs. After decades of paternalistic, but generally well-intentioned civilization efforts, U.S. Indian policy took a dramatic turn in aims and goals in the early 19th century, forsaking Indian civilization to instead pursue American westward expansion. Washington and Knox’s ultimate goal of completely integrating civilized Indians into U.S. society was abandoned under the auspices of racist claims that Indians were incapable of truly achieving civilization. Nowhere can the inherent inaccuracy and unfairness of such claims be better seen than in the case of the Cherokees. More so than any other Southeast tribe, the Cherokees wholeheartedly and successfully pursued civilization, as evidenced by the anglicized legal institutions embraced and embodied by the Cherokee Nation. The Cherokees so thoroughly accepted these legal institutions that they became the centerpiece of Cherokee efforts to resist Removal. In the end, however, despite their civilized Removal resistance strategies, the Cherokees suffered what was likely the harshest removal of all the Southeastern tribes.
Weary of criminals languishing in the system before finally facing their day in court, the Eastern Band of Cherokee Indians hopes to forge a new partnership with the U.S. Attorney’s office, getting their own prosecutor into federal court. Tribal council this month called on the U.S. Attorney to deputize Cherokee’s tribal prosecutor as a Special Assistant United States Attorney, allowing him to pursue cases in federal court, where many of the more serious crimes committed on the reservation end up. “It would provide them with a prosecutor that can handle those crimes that occur here, regardless of what kind of crime or where it happened,” said Jason Smith, the tribal prosecutor. When someone commits a crime in Cherokee, bringing them to justice as a complicated process. Jurisdiction on the reservation can be labyrinthine. Was the criminal a tribal member? Was the victim? Was it a major crime? Did it happen on the reservation?
Between 1810 and 1832, the United States Supreme Court established legal precedent on issues of Aboriginal rights with decisions frequently referred to as the "Marshall Cases." Since then these cases have consistently been cited as definitive statements providing legal justification for the alienation of land and sovereign rights from Indigenous peoples. One goal of this paper is the examination of how culture, as an ethnocentric force, has influenced the interpretation of law in a manner that has helped to maintain a colonial control over indigenous North Americans. Entre 1810 et 1832, la Cour Supreme des Etats-Unis etablit un precedent legal sur les problemes des Autochtones en se referant frequemment a ce qu'on disait les "Marshall Cases." Depuis ce temps-la, on cite ces cas comme declarations decisives fournissant la justification legale d'aliener les terres et les droits souverains des peuples indigenes. Un des buts de cet article est d'examiner comment la culture, en tant que force ethnocentrique, influenc;a I'interpretation de la loi d'une maniere qui aida a maintenir Ie contr61e colonial sur les Indigenes de l'Amerique du Nord.
On July 4, 1986, a Cherokee tribal member was shot in the leg and arrested by a deputy in Adair County, Oklahoma. In a subsequent civil action, the Tenth Circuit Court of Appeals ruled that absent a statutory grant of authority by Congress or consent from the tribe itself, Oklahoma law enforcement officers have no criminal jurisdiction “in Indian country” unless the crime is committed by a non-Indian against another non-Indian or the crime is a victimless crime committed by a non-Indian. Realizing that they were no longer protected by the state, the Cherokee Nation responded by creating its own Marshal Service. This article describes the evolution of that agency, checkerboard jurisdiction, and the need for cross deputization. In particular, the article addresses the recent political tribal crisis that almost devastated the newly formed Marshal Service and the tribe's current struggle to regain stability in the politically charged aftermath.
Once the most powerful indigenous nation in the southeastern United States, the Cherokees survive and thrive as a people nearly two centuries after the Trail of Tears and a hundred years after the allotment of Indian Territory. In Our Fire Survives the Storm, Daniel Heath Justice traces the expression of Cherokee identity in that nation’s literary tradition
Climate adaptation strategies typically involve making adjustments to laws about planning, resource allocation, and infrastructure to ensure that the built and natural environments will continue to support human communities. The question investigated here is related but distinct. This essay interrogates the necessary conditions for indigenous communities to survive, and perhaps even thrive, while maintaining their unique cultures in the face of dramatic and/or unknowable material circumstances. In other words, rather than ask how indigenous communities will adjust to the effects of a changing climate, this article asks what the essential conditions are for indigenous communities themselves to consider the extent, scope, and terms of any and all necessary adjustments. The history of the Cherokee Nation’s adaptation to their forced removal from their homelands in the Southeast to Oklahoma, explored briefly here, provides an initial set of hypotheses about the core components for successful adaptation to radically different territorial circumstances.
Focuses on the Indian Child Welfare Act, which became law on November 8, 1978. Examination of thehistorical and contemporary forces that led to passage of this piece of child welfare legislation; The effect of European conquest on American Indian children and families; Other aspects.
Judge John Martin created the modern Tribal Court. This template, still in use today, envisions a Court based on notions of jurisprudence easily recognizable to western eyes, yet leavened with aspects of Tribal culture and tradition. The model comprises a Court system that is familiar and dedicated not only to sovereignty, but also to defiance. The significance of the beginnings of the modern Tribal Court has been consistently underestimated, particularly by the Supreme Court of the United States. John Martin’s crucial role in it has largely been forgotten. This is partially because the origins of the Courts of the Cherokee Nation are seen, and correctly so, as but one example of the overall transformation of Cherokee society in a desperate attempt to demonstrate to the dominant white society that the Cherokee people had been assimilated to a degree and their removal from the Southeast was unnecessary. This view is incomplete, however, and has had the effect of diminishing the monumental success of creating a Western system of laws and justice in the Cherokee Nation—a system which began to exercise full jurisdiction in the early 1820s. Such diminution allows the Supreme Court of the United States to gloss over the truth—that Indian people historically operated respected Tribal systems of justice replete with all the components we take for granted today in our state and federal courts.
In Indian Justice, Grant Foreman presents John Howard Payne's first-hand account of the trial of Archilla Smith, a Cherokee charged with the murder of John MacIntosh in the fall of 1839. The Cherokee Supreme Court at Tahlequah (in present-day Oklahoma) found Smith guilty and sentenced him to die. Occurring immediately after the Cherokee Removal to west of the Mississippi River, the trial involved people on both sides of the bitter factional controversies then raging in the Cherokee nation. Payne's account of this important Indian case first appeared in two installments in the New York Journal of Commerce in 1841. In his foreword to this new edition, Rennard Strickland places the case in historical and contemporary context, exploring the evolution of tribal court systems and Indian justice over the past century and a half.
The constitutional status of Indian tribes within the framework ofthe American Republic has been elusive from the very beginning.This essential point was acknowledged by the Supreme Court itself inthe early case of Cherokee Nation v. Georgia, where it noted that "therelation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else."Despite this acknowledgment, the Court proceeded then, and has ever since, to routinely decide cases about the nature of tribal sovereignty and its interaction with the federal and state sovereigns with almost noreference to any constitutional benchmarks or limitations.'
For far too long, the Bureau of Indian Affairs (BIA) has operated like a law unto itself in Indian country.As the vast majority of tribal governments know from painful first-hand experience, the BIA routinely operates as if it is above the law, as if it is not required to respect the basic Constitutional liberties of Native Americans, as if the right of tribal self-government existed at the whim of BIA bureaucrats. There is no more telling example of the BIA's abuse of power than its reckless and illegal intervention into the internal political affairs of the Cherokee Nation of Oklahoma (CNO) in support of Principal Chief Joe Byrd. The BIA is clearly out of control in Oklahoma. The solution does not lie in the courts. Responsibility for stopping the BIA's abuse of power rests with Congress and with every Indian in the United States who has finally had enough of the BIA. The BIA's patently illegal intervention into CNO internal political affairs warrants an immediate congressional investigation of the BIA's abuse of power in Oklahoma. Congressional hearings should be convened both in Washington, D.C. and on reservations across Oklahoma to give Indian people a chance to tell their elected representatives what is happening to them. The Bureau of Indian Affairs has outlived any usefulness it ever had for American Indians. It is a gross anachronism in an era of tribal self-determination. Most critics of the BIA and a rapidly increasing number of Indians across the country are now calling for the outright abolition of the Bureau of Indian Affairs because its culture of corruption and institutional incompetence runs so deep that any attempt at reform would be futile.
During the period when the United States was under the Articles of Confederation, a committee of the Continental Congress condemned the "avaricious" attempts of people in the southern states to get Indian lands "by unfair means," citing it as "the principal source of difficulties with the Indians." Shoi'tly afterwards, in 1788, Henry Knox reported that the intrusions of whites on Cherokee lands were tantamount to war. The Continental Congress responded with a resolution citing the Hopewell Treaty provisions and directed Knox to prepare to expel the intruders by force. The states did not respond and the troops were not mobilized, but the dispute delayed North Carolina's ratification of the Constitution.
In the landmark case, The Cherokee Nation v. The State of Georgia, the United States Supreme Court ruled in 1831 that the Cherokee Indian Nation was not a foreign nation and therefore ruled that the Supreme Court did not have jurisdiction. The result was that the Cherokee Nation's land cessions were allowed to stand, and they were denied the right to sue in federal court to prevent their removal from tribal lands. Associate Justice Smith Thompson wrote a dissenting opinion upholding the claims of the Cherokee Nation. This manuscript is Justice Thompson's retained copy of his dissenting opinion.
"Articles of agreement and convention at the city of Washington on the nineteenth day of July, in the year of our Lord one thousand eight hundred and sixty-six, between the United States, represented by Dennis N. Cooley, Commissioner of Indian Affairs, [and] Elijah Sells, superintendent of Indian affairs for the southern superintendency, and the Cherokee Nation of Indians, represented by its delegates, James McDaniel, Smith Christie, White Catcher, S. H. Benge, J. B. Jones, and Daniel H. Ross—John Ross, principal chief of the Cherokces, being too unwell to join in these negotiations."
Gambill on Justice
Veterans, Data Privacy, Process of Advocacy, La America Latina, Homelessness, Mass Institutionalization, First Nations
Cherokee and Justice
The Cherokee (Tsalagi) and Justice
The Cherokee (Tsalagi) People and Justice
Para la versión en español hazle clic aqui
"I saw the helpless Cherokees arrested and dragged from their homes, and driven at the bayonet point into the stockades. And in the chill of a drizzling rain on an October morning I saw them loaded like cattle or sheep into six hundred and forty-five wagons and started toward the west....On the morning of November the 17th we encountered a terrific sleet and snow storm with freezing temperatures and from that day until we reached the end of the fateful journey on March the 26th 1839, the sufferings of the Cherokees were awful. The trail of the exiles was a trail of death. They had to sleep in the wagons and on the ground without fire. And I have known as many as twenty-two of them to die in one night of pneumonia due to ill treatment, cold and exposure..."
-Private John G. Burnett
Captain Abraham McClellan's Company,
2nd Regiment, 2nd Brigade, Mounted Infantry
Cherokee Indian Removal 1838-39
The Cherokee People are split into two broad tribal organizations or affiliations; the Eastern Cherokee, who inhabit the ancestral homelands in North Carolina and Tennessee and the by far greater in number Western Cherokee who reside on Tribal lands within the State of Oklahoma. The Cherokee refer to themselves as "Ani Yun Wiya" or ''Real People. The term Tsalagi or Tsalaki probably derives from the Creek term for the Cherokee, "Tciloki", meaning "people of different speech" or "people whose speech is different". The official Tribal designation of the Western Cherokee is United Keetoowah Band of Cherokee Indians, again located within the State of Oklahoma.
There are a number of theories regarding the origins of the Cherokee people; however, perhaps the most widely accepted school of thought around the issue of origin posits that they migrated from Northern regions into Southern Appalachia at a realtively late point in time, perhaps as late as the fifteenth century. The Cherokee speak an Iriquoian language and are thus related to the tribes of the Haudenosaunee, referred to later as the Iriquois Confederation by white settlers. Since the arrival of the first of European settlers in the sixteenth century the Cherokee had been regarded as one of the most advanced of North American Indigenous civilizations. Occupying the Southeastern corner of the current continental United States the ancestral lands were rapidly coveted by European settlers but the discovery of gold ore in present-day Georgia expedited heightened conflict with the whites in the 1830s. Despite a Supreme Court Ruling handed down by Justice Marshall the Cherokee were forcibly removed, in large part, from their homelands in Georgia. Andrew Jackson, in defiance of the High Court ruling, acerbically commented, "The Justice has made his ruling, now let him enforce it!" as he oversaw the removal of the Cherokee in one of the bleakest and most inhumane of acts in the annals of US History.
This removal of the Cherokee people from their homelands in Georgia a thousand miles to the west to the Indian Territory (present-day Oklahoma) has gone down in history as the "Trail of Tears". Thousands of people died along the trail and the internment camps set up en route prior to reaching their destination. In spite of their losses the Cherokee people quickly re-established themselves in Oklahoma and founded thriving communities centered around their new capitol of Tahlequah. In 1839 the Cherokee drafted and ratified their Constitution and began printing their own newspaper in the Cherokee language---the first of North American tribes to do so. The creation of the Cherokee writing system by Sequoyah in 1821 and the propagation of written materials and the inception and construction of a fine system of public schools, together with an high level of social organization, has led historians to refer to the period up until 1860 as the "Golden Age" of the Cherokee people.
The Cherokee Nation today is recognized as a Sovereign entity covering nearly 7,000 square miles of territory in the Northeaster corner of the State of Oklahoma. The organization of the Cherokee Nation mirrors that of other contemporary Republics, dividing authority into a tripartite system; Legislative, Executive and Judicial branches of government. Nearly 70,000 of the more than 300,000 Cherokee Tribal members live within the borders of the Cherokee Nation.
Under a revised Constitution, ratified in 1976 and approved by the Commissioner of Indian Affairs, Executive Power is vested in the Tribal Chief and a Deputy Tribal Chief presides over the Tribal Council which represents the Legislative Branch of the Cherokee Nation. Fourteen elected officials comprise the Tribal Council. The Judicial Branch is comprised of the District Courts and Court of Appeals Tribunal. The Tribunal is comparable to the United States Supreme Court and its three members are appointed by the Tribal Chief.
In 1990 the Cherokee Nation established operational parameters for its courts and introduced its own criminal penal and procedural codes.
The coerced removal of the tribes of the American Southeast marked a period of less than honorable actions by the United States and created an irremovable stain on U.S. credibility in Indian Affairs. After decades of paternalistic, but generally well-intentioned civilization efforts, U.S. Indian policy took a dramatic turn in aims and goals in the early 19th century, forsaking Indian civilization to instead pursue American westward expansion. Washington and Knox’s ultimate goal of completely integrating civilized Indians into U.S. society was abandoned under the auspices of racist claims that Indians were incapable of truly achieving civilization. Nowhere can the inherent inaccuracy and unfairness of such claims be better seen than in the case of the Cherokees. More so than any other Southeast tribe, the Cherokees wholeheartedly and successfully pursued civilization, as evidenced by the anglicized legal institutions embraced and embodied by the Cherokee Nation. The Cherokees so thoroughly accepted these legal institutions that they became the centerpiece of Cherokee efforts to resist Removal. In the end, however, despite their civilized Removal resistance strategies, the Cherokees suffered what was likely the harshest removal of all the Southeastern tribes.
Dunn, Colby, "Wheels of justice turn too slowly for Cherokee’s taste", Smoky Mountain News, Wednesday, 17 August 2011
Fields, Elizabeth Arnett, Between Two Cultures, Judge John Martin and the Struggle for Cherokee Sovereignty
Garroutte, Eva Marie, Real Indians: Identity and the Survival of Native America, University of California Press
Greymorning, Stephen, In the Absence of Justice: Aboriginal Case Law and the Ethnocentrism of the Courts, Department of Native American Studies, The University of Montana, Missoula, Montana, USA, 59812, The Canadian Journal of Native Studies XVII, 1(1997):1-31
Between 1810 and 1832, the United States Supreme Court established legal precedent on issues of Aboriginal rights with decisions frequently referred to as the "Marshall Cases." Since then these cases have consistently been cited as definitive statements providing legal justification for the alienation of land and sovereign rights from Indigenous peoples. One goal of this paper is the examination of how culture, as an ethnocentric force, has influenced the interpretation of law in a manner that has helped to maintain a colonial control over indigenous North Americans. Entre 1810 et 1832, la Cour Supreme des Etats-Unis etablit un precedent legal sur les problemes des Autochtones en se referant frequemment a ce qu'on disait les "Marshall Cases." Depuis ce temps-la, on cite ces cas comme declarations decisives fournissant la justification legale d'aliener les terres et les droits souverains des peuples indigenes. Un des buts de cet article est d'examiner comment la culture, en tant que force ethnocentrique, influenc;a I'interpretation de la loi d'une maniere qui aida a maintenir Ie contr61e colonial sur les Indigenes de l'Amerique du Nord.
Heck, William B. and Ralph Kearn, Michael B. Wilds, "Structuring the Cherokee Nation Justice System: The History and Function of the Cherokee Nation Marshal Service", Criminal Justice Policy Review March 2001 vol. 12 no. 1 26-42 (Sage Journals)
Justice, Daniel Heath, Our Fire Survives the Storm: A Cherokee Literary History, U of Minnesota Press, Jun 6, 2006 - 296 pages
Once the most powerful indigenous nation in the southeastern United States, the Cherokees survive and thrive as a people nearly two centuries after the Trail of Tears and a hundred years after the allotment of Indian Territory. In Our Fire Survives the Storm, Daniel Heath Justice traces the expression of Cherokee identity in that nation’s literary tradition
Krakoff, Sarah, Radical Adaptation, Justice, and American Indian Nations, Environmental Justice, Volume 4, Number 4, 2011, C. Mary Ann Liebert, Inc., DOI: 10.1089/env.2010.0034
Climate adaptation strategies typically involve making adjustments to laws about planning, resource allocation, and infrastructure to ensure that the built and natural environments will continue to support human communities. The question investigated here is related but distinct. This essay interrogates the necessary conditions for indigenous communities to survive, and perhaps even thrive, while maintaining their unique cultures in the face of dramatic and/or unknowable material circumstances. In other words, rather than ask how indigenous communities will adjust to the effects of a changing climate, this article asks what the essential conditions are for indigenous communities themselves to consider the extent, scope, and terms of any and all necessary adjustments. The history of the Cherokee Nation’s adaptation to their forced removal from their homelands in the Southeast to Oklahoma, explored briefly here, provides an initial set of hypotheses about the core components for successful adaptation to radically different territorial circumstances.
Mannes, Marc, Factors and Events Leading to the Passage of the Indian Child Welfare Act, Source: Child Welfare, Jan/Feb95, Vol. 74 Issue 1, p264-282, 19p, 1 chart
Martin, Matthew J., Chief Justice John Martin and the Origins of Westernized Tribal Jurisprudence, Elon Law Review V4 No. 1
Judge John Martin created the modern Tribal Court. This template, still in use today, envisions a Court based on notions of jurisprudence easily recognizable to western eyes, yet leavened with aspects of Tribal culture and tradition. The model comprises a Court system that is familiar and dedicated not only to sovereignty, but also to defiance. The significance of the beginnings of the modern Tribal Court has been consistently underestimated, particularly by the Supreme Court of the United States. John Martin’s crucial role in it has largely been forgotten. This is partially because the origins of the Courts of the Cherokee Nation are seen, and correctly so, as but one example of the overall transformation of Cherokee society in a desperate attempt to demonstrate to the dominant white society that the Cherokee people had been assimilated to a degree and their removal from the Southeast was unnecessary. This view is incomplete, however, and has had the effect of diminishing the monumental success of creating a Western system of laws and justice in the Cherokee Nation—a system which began to exercise full jurisdiction in the early 1820s. Such diminution allows the Supreme Court of the United States to gloss over the truth—that Indian people historically operated respected Tribal systems of justice replete with all the components we take for granted today in our state and federal courts.
Nielsen, Marianne O. and Robert A. SilvermanCriminal Justice in Native America
Payne, John Howard, Indian Justice: A Cherokee Murder Trial at Tahlequah in 1840, University of Oklahoma Press, 2002 - 112 pages
In Indian Justice, Grant Foreman presents John Howard Payne's first-hand account of the trial of Archilla Smith, a Cherokee charged with the murder of John MacIntosh in the fall of 1839. The Cherokee Supreme Court at Tahlequah (in present-day Oklahoma) found Smith guilty and sentenced him to die. Occurring immediately after the Cherokee Removal to west of the Mississippi River, the trial involved people on both sides of the bitter factional controversies then raging in the Cherokee nation. Payne's account of this important Indian case first appeared in two installments in the New York Journal of Commerce in 1841. In his foreword to this new edition, Rennard Strickland places the case in historical and contemporary context, exploring the evolution of tribal court systems and Indian justice over the past century and a half.
Selections from the Laws of the Cherokee Nation
Stewart, Omer C., Questions Regarding American Indian Criminality, ERIC 1961-00-00
The Cherokee Cases, The Formative Years (1789-1871), McMillan and Co. Ch. 148, 4 Stat. 411-12 (1830).
During the period when the United States was under the Articles of Confederation, a committee of the Continental Congress condemned the "avaricious" attempts of people in the southern states to get Indian lands "by unfair means," citing it as "the principal source of difficulties with the Indians." Shoi'tly afterwards, in 1788, Henry Knox reported that the intrusions of whites on Cherokee lands were tantamount to war. The Continental Congress responded with a resolution citing the Hopewell Treaty provisions and directed Knox to prepare to expel the intruders by force. The states did not respond and the troops were not mobilized, but the dispute delayed North Carolina's ratification of the Constitution.
Thompson, Smith (1768-1843), Holograph manuscript, 1831, Cherokee Nation Denied Foreign Nation Status, Library of Congress
Treaty with the Cherokee, 1866. July 19, 1866., 14 Stats., 799., Ratified July 27, 1866., Proclaimed Aug. 11, 1866