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Chronicles of Oklahoma
Volume 6, No. 2
June, 1928
INTERESTING ANTE-BELLUM LAWS OF THE CHEROKEES, NOW OKLAHOMA HISTORY

BY JAMES W. DUNCAN, TAHLEQUAH, OKLA.

Page 178

Quoted from an old Cherokee Law Book entitled, “Laws of the Cherokee Nation, Passed during the Years 1839 to 1867.”

The laws of the Cherokees after the big removal west in the late thirties and on through the civil war were brief and the penalty stern and drastic. Imagine such laws in force in Oklahoma to-day. There would certainly be squirming around, at least when the penalty was applied. The Cherokees had no jails nor need of them. Under such severe penalties few laws were needed and few violated.

Here are a few quoted under the head of “Felonies”:

An Act for the Punishment of Thefts and Other Crimes.

Be it enacted by the National Council, That, any person who shall be convicted of stealing a horse, mule, jack, or jenny, shall be punished by not less than “one hundred lashes” on the bare back, and be compelled to make payment to the amount of damages or injury sustained, if such stolen property be not restored, for the benefit of the party so injured. “And any person who shall be found the second time guilty of stealing a horse, mule, jack, or jenny, before any of the courts of the Cherokee Nation having jurisdiction of the offense, shall suffer death by hanging.” For all other property which may be stolen, upon conviction of the party so offending, the punishment shall be in stripes on the bare back in proportion to the magnitude of the offense, at the discretion of the court, and judgment against the offender for damages to the party injured.

SEC. 2. Be it further enacted, “That if any person or persons shall maliciously set fire to and burn the dwelling house of another, such person or persons so offending, on conviction thereof by the courts having jurisdiction of the same, shall suffer death by hanging.”

Tahlequah, September 19, 1839.

JOHN ROSS.

Approved.

Page 179

AN ACT TO PREVENT AMALGAMATION WITH COLORED PERSONS.

Be it enacted by the National Council, that intermarriage shall not be lawful between a free male or female citizen with any person of color, and the same is hereby prohibited, under the penalty of such corporal punishment as the courts may deem it necessary and proper to inflict, and which shall not exceed fifty stripes for every such offense.

Tahlequah, September 19, 1839.

JOHN ROSS.

Approved.

AN ACT FOR THE PUNISHMENT OF CRIMINAL OFFENSES.

SEC. 1. Be it enacted by the National Council, That upon trial and conviction of any person charged with the offense of having committed a rape on any female, he shall be punished with one hundred lashes on the bare back.

SEC. 2. Be it further enacted, That any female who shall be found guilty of having committed infanticide, or, being accessory thereto, shall, upon conviction thereof, be punished with not less than twenty-five nor exceeding fifty lashes.

SEC. 3. Be it further enacted, “That any citizen or citzens of the Cherokee Nation be and they are hereby authorized to arrest and deliver to the sheriffs any person or persons who may be charged with criminal offenses.”

The state of Maine was the first in the United States to pass prohibition law, in the early 80’s, followed by Kansas and Georgia in the latter 80’s, but the Cherokees had a prohibition law antedating these by forty years.

AN ACT PROHIBITING THE INTRODUCTION AND VENDING OF SPIRITUOUS LIQUORS

Be it enacted by the National Council, That the introduction and vending of ardent spirits in this Nation shall be unlawful; and any and all persons are prohibited from selling or retailing spiritous liquors within the limits of this Nation, under the penalty of having the same wasted or destroyed by any lawful officer or person authorized by the

Page 180

sheriff for that purpose, and the sheriffs or other lawful officers of this Nation, while in search of spirituous liquors, are authorized “to put on oath such persons as they may deem fit, and to exact from them any information that may be of service to them in searching for ardent spirits”; and also “to procure search warrants authorizing the entering and examining of any house, when there is good reason for believing that spirituous liquors are therein concealed.”

Be it further enacted, “That all persons who may be convicted of introducing ardent spirits of any kind within the limits of this Nation, or of trading in the same, shall be fined in a sum of not less than ten dollars nor exceeding fifty dollars, at the discretion of the court having jurisdiction of the case; one-fourth of the fine so collected shall go to the sheriff, one-fourth to the solicitor of the district in which the same may be collected, and the remaining one-half to the Natinonal treasury; and no property, except improvements, shall be exempt from the payment thereof ”

October 25, 1841.

JOHN ROSS,
Principal Chief.

Reading further in this rare old book, up into the late “50’s” and early “60’s,” we find the penalties attached become much milder and the whippings cease to be executed. There was a reason for these severe and drastic penalties. The removal west under the treaty of 1835, from the old nation, Western North Carolina, North Georgia and East Tennessee, had created in the minds of many, a vicious and scornful temperament. Imagine the removal of sixteen thousand some fifteen hundred miles through a trackless wilderness in mule and ox wagons, in rain and storm. Old people and those on death beds, being jolted along in rough wagons and roads, some dying while being hauled and buried by the roadside and covered with puncheons split from a nearby tree cut for the purpose. Imagine mothers giving birth to babes while in wagons. Is it any wonder their minds were harsh? Frowns and hatred had supplanted smiles.

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