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Chronicles of Oklahoma
Volume 2, No. 1
March, 1924
COURTS OF THE CHEROKEE NATION1

William P. Thompson

Page 63

Strange as it may seem, and as young as I look, I am called upon to respond to the toast, "Early Experiences of the Bar of Indian Territory." In other words, I am paraded before this notable aggregation of the talent and brains of our grand and glorious State, and before the world, at my tender age, as one of the "Nestors" of the Bar of the "Beautiful Indian Territory."

I cannot imagine why I was selected to speak to the question assigned me nor do I know whom to hold responsible for this "assault and battery" upon my youth, unless perchance our able and worthy toastmaster may plead guilty to the "soft impeachment." For it was I who had the honor of discovering him in an early day and was won over as the trial judge by the eloquence of his maiden speech in the first case he ever tried in Indian Territory and was persuaded by the earnestness of his appeal, as many others have been since, to give him judgment in this his first case, and this is his ungrateful return for the early kindness shown.

But, perhaps there was another reason why I was selected for this subject, and that is that I am a native born Cherokee Indian and belonged to the Old Cherokee Bar, which is older by more than one-half a century than the Indian Territory Bar, so called, which numbered among its members the Ridges, Ross, the Boudinots, Lynch, Adair, Bell, Watie, Benge and many others, whose names and fame will live with the name of the Tribe, which they, by their ability and genius, made famous.

We read in the Book of Holy Writ that, "In the beginning the Earth was without form and void and darkness was on the face of the deep," and so it was with jurisprudence before the Five Civilized Tribes, with their Constitution and Laws, came



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to the most beautiful spot on God’s footstool, Old Indian Territory, than which,

No spot was ever fairer,
No breezes ever rarer,
No sunsets ever brighter,
Nor moonbeams ever lighter.

To which, description of the Garden of Eden, the "Golden Orchards of Hesperides," or the "Hanging Gardens of Babylon," by the veriest enthusiasts fail to portray but a faint idea of the beauty and magnificence of this empire "grander than any for which Caesar or Alexander sighed or Napoleon deluged the world in blood."

The grandest descriptions in the realms of poetry by the greatest genius the world ever produced, failed to portray any part of its beauties. I have no doubt that Byron was vainly endeavoring to convey some faint conception of the charms of this beautiful land when his poetic soul gushed forth in the rippling strains of the beautiful rhapsody:

"Know ye the land of the cedar and vine
Where the flowers ever blossom and the beams ever shine
Where the light wing of zephyr oppressed with perfume
Wax faint o’er the gardens of gull in her bloom
Where the citron and olive are fairest of fruit
And the voice of the nightengale never is mute
Where the tints of the earth and the hue of the sky
In beauty though varied in color may vie."

And such, gentlemen, was the setting of the arena, in which the noble knights of the Bar of the Fast Side were called upon to make history.

But, as Bishop Berkley said:

"Westward the course of Empire takes its way,
The first four acts already passed,
The fourth shall close the drama with the day
Time’s noblest offspring is the last."

And so the Five Civilized Tribes came West each bearing a separate Constitution and laws, and each set up for itself a separate code of laws, and each with its co-ordinate Executive, Legislative, and Judicial Branch, modelled after the States of

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Georgia, Mississippi and Alabama, of over three-quarters of a century ago, proclaimed with legal authority, "Let there be light and there was light," and this fair land gave birth to a new system of jurisprudence in 1808, and lived its life and ceased to be in 1898, covering a period of ninety years.

Each tribe had its Bar, its Tribal, Circuit, District and Supreme Courts, which had jurisdiction over members of the separate tribes only except as provided by treaty stipulation.

The last of 1808 was the first written law of the Cherokee Nation that there is any record of now, and was passed in the Old Cherokee Nation East. It was the first step toward organized government that the Cherokee Nation had outside of their councils. That law provided for a company of light horse, consisting of six men, one captain, one lieutenant, and four privates. These men were charged with the execution of the laws that they had. They determined the innocence or guilt of every person, and when there was no precedent or custom to fit the case, they made one, and administered the punishment right on the spot where they captured him, there being no court house. This government ran along until 1817, later in the same year, Constitutional Government was adopted. The Constitution was framed somewhat after the United States Government or State Government. Under their Constitution the Nation continued in existence until 1827, when a new constitution was framed and Executive, Legislative and Judicial powers were provided for. In 1837 and 1838 the Cherokees moved West and in 1839 a new government was formed and a new constitution made. This wasn’t as elaborate as that of the State, they didn’t have quite so many officers as the State Government. In all of its parts it was framed after the Constitution as nearly as possible, and the government was about the same as the States. There were five districts originally. Skinbayou, Delaware, Saline, Cherokee and Flint Districts. The Constitution was mainly the work of William Shorey Coody.

The first constitutional government was made in 1817, that was a little constitution, consisting of six articles, giving the fundamental principles of the government. The next effort was a little more elaborate, and the constitution was added to on the 15th day of June, 1825; then on July, 1827, a new constitution

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was made and it was more elaborate and complete than the other two. This was all in the Cherokee Nation East. The Cherokee Government east of the Mississippi having been destroyed by the operation of the treaty of 1835, the Cherokees moved in 1838 and 1839 to the Cherokee Nation West, in what is now the State of Oklahoma, and organized a new Government entirely, constitution and all. This new constitution was adopted on the 12th day of July, 1839, and continued in operation until the Cherokee Nation was dissolved and the Territory became a part of the State of Oklahoma.

As early as 1808, several bands of Cherokees becoming dissatisfied with the conditions in Georgia, Alabama and other Eastern States, left their country and came West as far as the Arkansas River and the mouth of the White River. Finally about the year 1817, a large band of those Cherokees came West and settled along the St. Francis River, and gathered together the bands that had preceded them here. In 1819, under a treaty of government, these Cherokees that were already West, moved up the Arkansas River to what is now Mulberry Creek back of Fort Smith some fifty or seventy-five miles. They resided there about ten years.

In 1828, they made another treaty with the government and bought this entire country which consisted of about fourteen million acres of land, trading everything that they had for it. They were given seven million acres more, on which they had an easement for hunting grounds, etc.

In 1835, the Cherokees East made a treaty with the government. They were to move out here and join these Western Cherokees and old settlers, and the Government then agreed to give them the entire country, that is the easement that they had given the old settlers, and made them a title thereto. About the year 1846, there were several disagreements among the Eastern and Western Cherokees. They all went to Washington, there the treaty of 1846 was entered into by both nations of these Indians, and they agreed to settle and all become one people and remain such, and lived under the treaty practically until they were dissolved and became part of Oklahoma.

Many funny incidents, strange situations and complex jurisdictional questions arose in the experience of the practicing at-

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torney in the Tribal Courts, which might be interesting to relate.

The first circuit judge who had charge of the criminal matters was James Brown. The Cherokee men of that earlier time were uneducated; they had some men of good sound sense but no scholarly men out of which to make lawyers and judges, and James Brown was a man of robust character, physically, and mentally without any education whatever, but was selected judge of the Skinbayou District. The first murder case that he had, and the first one that happened in the Cherokee Nation, the prisoner was represented by Richard Fields, an attorney of national reputation among the Cherokees. I do not know who the prosecuting attorney was. The Court called the prisoner who was arraigned to plead, the Judge addressed him and asked him if he was guilty or not guilty and he arose and said, "Judge, I killed the man, but I had to kill him to save my own life." Without any further procedure, Judge Brown took the law and read it, and he says to the sheriff, "Mr. Sheriff, take this man out and hang him in three days." Richard Fields, his attorney, of course jumped up and told him he hadn’t tried the man, and that he couldn’t hang him until he was convicted. Judge Brown says, "Hain’t been convicted? Didn’t he say he killed the man, and don’t the law read if a man kills another he must be hung? Don’t need no trial." Well, Fields persisted in his objections ’til Brown got weary and he addressed him this way, "Richard, you set down and if you get up here again, I will have you put in for accessory." They appealed to the Chief to interfere and he induced the judge not to have him hanged.

Judge Looney Riley was District Judge of Tahlequah District. His court had jurisdiction in all matters of petit larceny, etc. The punishment for which, was thirty-nine lashes on the bare back. During his term of office there was a man charged with attempting to steal sugar, and the only proof that they had against him was that the owner of the store had a warehouse, that the door was open all the time; and he had a hogshead of sugar stored away in there and this man came along in a storm and stopped inside of the door with a sack in his hand, to keep out of the rain, somebody reported him and the people concluded that he had come in there to get sugar, as that was most of what the store contained. In trying the case, the testimony was given

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in to the jury. The jury came in and reported to the judge that they could not find any law for punishing a man for trying to steal sugar, and refused to return a verdict of guilty. The judge got mad. He says, "You fellows don’t know anything about the law. You try to make laws, yourselves. I will just turn you loose. You are not fit to hear anything whatever. I will go to Caney and get a jury to enforce the law." He dismissed the jury, sent out for another venire, set a day for another trial of the prisoner. In that particular case, he gave the jury the law, and they convicted the man. They gave him thirty-nine lashes, and before turning him over to the sheriff for punishment, he lectured him this way, "You’re a pretty looking fellow, and you a grownup man, got a good wife and children, trying to steal sugar, and they tell me that you have twenty bee gums, more sweetening than any man in the country." This was the punishment the fellow received.

John Spaniard was a Spaniard and a natural born horse thief. He was caught, but his attorneys told him that they would get him out because they had no jurisdiction over him. They went into the trial and had made no preparations whatever, and the judge convicted him and ordered him to be given one hundred lashes on the bare back. A few years later he was again taken up for stealing. They took him over to lawyer Tom Taylor’s and told John they would get him out all right, that they had no jurisdiction over him. He said, "I tried jurisdiction once, and they jurisdicted me, now I don’t want any more jurisdiction."

In 1885, they formed a treaty, which provided for the protection of white men coming in from the United States. It proved that the white man could come in and hunt, but all foreigners that came in should be punished and tried as they wished.

Sometime during the early days, there was a trial between two Delawares in a civil suit before the Circuit Court. It was a trial for the division of some Delaware money, the Delawares having been taken into the Cherokee Nation. The attorney representing the plaintiff had put in all his testimony, and closed, the attorney for the defendant, who was a graduate of Princeton, moved for a dismissal of the case on the grounds that they had no jurisdiction, both parties being Delawares, the law had no

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control over them. The old judge listened patiently to his argument, then looked severely at him and said, "I tell you I have jurisdicted one half of this case, and I will jurisdict the other half, if it kills me. You’ve got your remedy and right, why don’t you try and put me out by impeachment before the council."

Bryce Martin was District judge down about Oak Grove, Tom Rider also lived down there. The judge fixed out his jury list and proclaimed the law, had set the place for the Court. Several of the people went over to see how court was going along. No one had filed a suit, and there was no prisoner. They sat around until noon, when the judge said, "Boys, looks like nobody wants to do any courtin’ today, so we will go down to some neighbor’s house and eat dinner." After dinner they came back and sat around again, no case was called so finally he adjourned court and went home. Between that and the next court they learned that they must have a court and court officers. Not long after they got a good case. Had a fellow up for stealing a chicken. The prisoner and the judge were pretty good friends and both liked whiskey. They brought him up before the judge and he explained the situation. Told him he had just gotten out of whiskey. He said, "I had just been drunk and wanted chicken soup awfully bad, and you know, Judge, what it is yourself when you have been drunk, you would have done ’most anything to get chicken soup." The Judge looked at him and said, "Well, Tom, I will let you off easy, and give you fifteen lashes."

Judge Charles Rogers was District Judge out here. This was one of the jurisdiction cases. The Government had given them jurisdiction over a white man. And one of the white men had organized a little band of horse thieves among some of the boys, and they caught him, and had a good case against him. They arrested him with his band and whipped six or seven of them. W. H. Jackson, an Englishman, who had married a Cherokee, was his lawyer; they tried one after another and sentenced them to one hundred lashes on the bare back. The leader, of course, plead jurisdiction. The Judge was sitting up in the old court house, back of which was a window and fifteen feet from the door was a hickory tree to which they had tied the prisoners and given them their punishment, and which could be seen from where the Judge sat. The jury came in with the sentence

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that he was guilty. The judge sentenced him right away, Jackson interfered, and raised the question of jurisdiction. He says, "Captain, what have you got to say about the jurisdiction of this court?" "You haven’t any jurisdiction at all. This man is a white man, and you have no right to try a white man," and was proceeding with his argument. Joe Lynch and another deputy sheriff had taken the prisoner out and were preparing to carry out the court’s sentence. The Judge was sitting there listening to Jackson in his learned argument on the jurisdiction of the Court, but after the second or third lick the prisoner yelled. The Court says, "Hell, Jackson, you might just as well quit your speech, the boys have already whipped him." And thus the question of jurisdiction was disposed of with the quick ready justice of the pioneers.

The Cherokee courts had no shorthand reporters, and a stenographer was unknown, but all questions, answers, and rulings of the Court and proceedings were taken down in long hand, and in many instances where fullblood Cherokee citizens were parties, their testimony had to be interpreted into English, and all English witnesses interpreted back into Cherokee, but the proceedings were all conducted in English. The fullblood witness was much given to going into all the minute details before he would get down to the material testimony in the case.

In the trial of Mike Carey, a fullblood charged with murder, in the Court at Tahlequah, one of the supposed eye-witnesses was a fullblood Cherokee named David. The defendant and the deceased and David had been over to Tahlequah, where they procured a jug of whiskey, and in going back to their homes about ten or twelve miles in the hills from Tahlequah, they drank repeatedly, from the jug, and when they got to the place where the tragedy occurred they were all intoxicated. The witness, David, was placed upon the witness stand and he gave all the details of coming to Tahlequah, all they did while they were in Tahlequah, all they did on the way home, and it took the Court in the giving of the testimony, interpreting it into English, reducing it to the record in longhand, an entire day, and just before he came to relate the actual acts of the parties when the tragedy occurred he told the Court that he took another drink from the jug, and paused. He was asked to proceed and tell what oc-

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curred afterwards, and he says, "Judge, I went to sleep," and he never knew anything that happended at the tragedy.

At the trial of another murder case, one of the Supreme Judges, who was then presiding, was called upon to pass upon the question of the admissibility of a confession made by the defendant. The attorney for the prosecution had laid the foundation for the admission of the confession of the defendant, by showing that the same was a voluntary statement and had not been obtained by any threats of punishment, or by holding out any inducements to the defendant to bring about the statement, and the witness was asked to proceed and tell the Court when and where the statement was made and detail the conversation. The witness began his statement by saying, "The defendant and I were galloping along across the prairie, and the defendant said—." The attorney for the defense objected to the statement on the grounds that it was inadmissible. The Court then adjourned for the noon recess, and the attorneys, during the interim, provided themselves with works on evidence, decisions of Courts, and came back to Court in the afternoon prepared to argue the question of the admissibility of this evidence, and that consumed the whole afternoon until time to adjourn, before the argument closed. The next morning the Court, after deliberating over the question all night, handed down his opinion in this wise: "Well, I guess as they were galloping along across the prairie, the witness can tell it," and thus substantial justice was done, although the reasoning for the rule was crude, yet the Court, in his mind, felt that if the prisoner and witness were galloping along with a free and easy swing, across the broad prairies, that the statement must have been voluntary and was therefore admissible, but if they had not shown the fact that they were galloping along under the conditions they were, they never would have gotten the confession in evidence before the Court in that case.

On the question of jurisdiction, we had in the old Indian Territory, our municipal Courts, presided over by the Mayor of our incorporated towns, our tribal courts, which had jurisdiction over the members of the Tribe, in which such courts were located, and our United States courts, which had jurisdiction in cases where one of the parties was a citizen of the United States.

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A case arose at Tahlequah in the early days, where a Cherokee citizen by blood of the Cherokee Nation killed a Choctaw citizen by blood of the Choctaw Nation, under circumstances that might or might not have been justifiable, had it been such a case, that could have been brought to trial before any Court. The Cherokee citizen, who did the killing, ran away and stayed out for some time, but he came in one night at midnight to consult me about his case, and I asked him what court he thought he could be tried by, and he replied "The Cherokee Courts." I asked him if he was not a Cherokee citizen by blood of the Cherokee Nation. He said he was. I asked him if the deceased were not a citizen of the Choctaw Nation, by blood, and he replied that he was. Then I told him that he could not be tried in the Cherokee Courts, as they had no jurisdiction to try any case other than where both parties were citizens of the Cherokee Nation. He then looked up in horror and said to me if Judge Parker, at Fort Smith, should try him that he would certainly hang him. I told him that the United States Court had no jurisdiction as neither he nor the deceased was a citizen of the United States. I advised him to go home to his wife and children, and come to my office the next morning, and that we would go before the Mayor of the town of Tahlequah and plead guilty and pay a fine for disturbing the peace and quiet of the incorporated town of Tahlequah, by discharging firearms within the city limits, and we did so, and no court has ever tried him for the offense of killing this man, and no court can ever do so.

Another case was one where a citizen of the Cherokee Nation killed another citizen of the Cherokee Nation. He was indicted by the grand jury, arrested, tried before a jury of his peers, who returned a verdict of guilty of murder in the first degree. He was sentenced, by the Court, to be hanged, and a commitment was issued that he be confined in the National prison at Tahlequah until the day of execution, and then on the day of the execution named that he should be taken from the jail and hanged by the high sheriff of the Cherokee Nation. On the way from the District Court, where he was tried, to Tahlequah, a distance of twenty miles across the hills, he escaped from his guards, and left the country. A few months afterwards the Act of Congress, on the 28th of June, 1898, commonly known as the Curtis Bill, became a law, which provided, by its terms, that

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from and after the 1st day of July, 1898, that none of the judicial officers of the Cherokee Nation should perform any of the duties of their several offices, and a few months later, I received a letter from this defendant from away down in Arkansas, stating that he wished me to take up his case before the Board of Pardons of the Cherokee Nation, and get his sentence commuted to five years in the National Prison, and if I could do this that he would return and submit to imprisonment for this term. After looking up the matter and deciding that the time for his execution had already passed; that the sheriff, whose duty it was to arrest him, had been deprived of his office; that the judge, who tried him, could no longer re-sentence him, and that the high sheriff, whose duty it was to execute him, had been deprived of his office, that there was no power in the only officers, who could deal with his case, to further interfere with him, I advised him to come home and go to his family and be a good citizen. Here is a case where a man was arrested, tried, convicted and sentenced, and who was never pardoned, yet he is a free man today, with no power vested in any tribunal to deprive him of his liberty.

There are many other interesting matters that have come before the Courts of the United States that had to be met by the members of the Bar of Old Indian Territory, that are as interesting or even more so, than those referred to, but time forbids further reference at this time, and as I look around me tonight at the faces surrounding this festal board, I see those knights of "Ye Olden Tyme," who, when I was a boy fresh from college in the year of our Lord, 1889, I discovered at Muskogee. I see pioneers of the old United States Court among them W. A. Ledbetter, who was at that time the Examiner and the terror of all applicants for admission to the Bar, and who yet holds that position in our new state. C. L. Jackson, W. T. Hutchings, and others, who are the hardy pioneers, who wrestled with the mixed questions of jurisdiction of the tribal court, Arkansas Law, Laws of the United States, the Western District of Arkansas, the Eastern District of Kansas, at Wichita, and the Texas District, at Paris, who comprised the old guard of the Indian Territory Bar, who, like the pioneers, without rod or compass, have hewn their way through unbroken and trackless forests and blazoned the trail for others to follow, so these hardy sons without authority, decisions, or precedents, and without anything ana-

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logous to the anomalous conditions that had to be met, blazed the trail, made precedents, secured legislation, and made it possible for the erection of this, the last, greatest and best state in the Union.

It is said that Plato congratulated himself, first, that he was born a man, second, that he was born a Greek, and third, that he was contemporary with Sophocles, and I stand up before you here tonight and before the world, and say that I am proud that I was a member of the Old Indian Territory Bar, proud to be with you here tonight at this banquet and still prouder to raise my voice in praise of these old generals of the law, and their work, in shaping the East Side and making it ready for Statehood, which stands as a monument to their energy, their ability and their integrity, which is greater than the Collossus at Rhodes, or any other monument carved from any stone, or shaped from any bronze. It is an empire raised to perpetuate their memory, and a people to join in loud acclaim that well merited plaudit, "Well done thou good and faithful servant," and this monument will stand as long as the great and grand Union stands, and will perish only when the angel shall make that dread announcement, "Time is, Time was, but Time shall be no longer," and amidst the crash of worlds, ruin of Governments, and gathering gloom, the Star of the State of Oklahoma will rise transcendant over all, shedding forth its mellow light, and the spirit of these legal luminaries riding on the wings of the wind, will cry out in triumphant tones, "You had a noble birth, but you die a nobler death."

And, now say I to them, voicing the same sentiments that were written by the English poet, Byron, to his friend, Tom Moore, the Irish poet,

"My boat is on the shore,
And my bark is on the sea:
But, before I go, Tom Moore,
Here’s double health to thee!
Here’s a sigh to those who love me
And a smile to those who hate;
And, whatever sky’s above me,
Here’s a heart for every fate.
Though the ocean roar around me,
Yet it still shall bear me on;
Though a desert should surround me,
It hath springs that may be won.
Were’t the last drop in the well,
As I gasp’d upon the brink,
Ere my fainting spirit fell,
’Tis to thee that I would drink."

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