Legislating women's sexuality: Cherokee marriage laws in the nineteenth century.
Urban women (Laws, regulations and rules)
Marriage law (Interpretation and construction)
Cherokees (Social aspects)
Cherokees (Demographic aspects)
|Publication:||Name: Journal of Social History Publisher: Journal of Social History Audience: Academic Format: Magazine/Journal Subject: History; Sociology and social work Copyright: COPYRIGHT 2004 Journal of Social History ISSN: 0022-4529|
|Issue:||Date: Winter, 2004 Source Volume: 38 Source Issue: 2|
|Topic:||Event Code: 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime; 290 Public affairs Advertising Code: 94 Legal/Government Regulation; 91 Ethics Computer Subject: Government regulation|
|Geographic:||Geographic Scope: United States Geographic Code: 1USA United States|
The nineteenth century was a time of tremendous social and political upheaval in the Cherokee Nation. Most readers are likely to be familiar with the tragedy of the "Trail of Tears" when federal troops forced the Cherokee Indians to abandon lands in Georgia, Alabama, Tennessee, and North Carolina to settle in the Indian Territory (present day Oklahoma) in 1838-1839. What may not be as widely known is that Removal was only one of several dramatic changes experienced by the Cherokee Nation in the nineteenth century. The Cherokees radically transformed their political and legal institutions early in the century; survived the internal strife, which verged on civil war, that was the result of the removal policy of the 1830s; weathered the American Civil War and their own reconstruction as they struggled to incorporate their former slaves into society; and confronted federal attempts to dismantle Indian sovereignty as the century drew to a close. In many respects, the legal institutions of the nineteenth-century Cherokee Nation resembled those of the United States. The Cherokees divided their government into three branches: an executive embodied by the Chief; a judiciary with district and Supreme courts; and a legislature that created laws for the Nation. This essay will consider some of the laws passed by the legislative branch of the Cherokee government, particularly those regarding marriage and sex.
The Cherokee legislative body was passing legal statutes by 1819, while still occupying territory in the state of Georgia. Land hungry whites, Georgians in particular, continually encroached on Cherokee territory and contested Indian land ownership. Some Cherokees voluntarily migrated to territory in Arkansas and Texas in the 1810's and 1820's at the first sign that whites wanted to push Cherokees out of Georgia. In 1827 the Council adopted the New Echota Constitution, modeled closely after the American Constitution, in part to reiterate Cherokee sovereignty and ward off federal attempts to dispossess Cherokees of their land. After the forced removal of the rest of the Cherokee Nation from the southeast to the Indian Territory, the newly arrived Cherokees grappled with the earlier Cherokee migrants over the contours of the newly combined Nation. The unified Cherokee Nation adopted the Tahlequah Constitution of 1839 to replace the earlier New Echota Constitution. The new constitution retained many of the same provisions regarding marriage and sex. Thus, the laws that are the focus of this essay span both the pre- and post-Removal eras.
During the first half of the nineteenth century, the Cherokee legislature enacted a series of laws regulating sex and marriage that reveal the efforts of Cherokee authorities to modify conceptions of gender and race in the Nation. In particular, Cherokee officials sought to control the marital behavior of Cherokee women because they had the ability to create new, legitimate members of Cherokee society through reproduction and marriage. An examination of Cherokee marriage laws also demonstrates Cherokee attempts to legally distinguish American Indians from people of African descent. Moreover, the marriage laws drew clearer connections between whites and Indians. As a result, Cherokee law invoked a common identity for Indians and whites socially as free and racially as not black.
Cherokee lawmakers often wrote provisions that simultaneously addressed issues of gender and race and simultaneously concerned blacks and whites. And at times, Cherokee thinkers offered gendered explanations for laws that targeted race. Similarly, laws with distinctly racial overtones may have also had gendered meanings. Thus, it is difficult to parse out or separate each topic; some overlap in the discussion is inevitable. Hence, though I have broadly outlined the organization of the essay below, the topics frequently intersect. This essay first contemplates the gendered aspects of Cherokee laws policing sex and marriage by exploring the importance of Cherokee women's marital choices and official response to those choices. In particular, Cherokee women's choice of non-Cherokee marital partners, most frequently whites, and the concomitant introduction of outsiders into the Nation forced the Cherokee legislative branch to reformulate Cherokee women's relationship to the production of new citizens in the Nation. Then the essay turns more explicitly to the laws' racial implications and examines who could marry in the Cherokee Nation, and why, by first examining Cherokee laws regulating marriage with people of African descent. Cherokees increasingly excluded people of African descent from membership in the Nation through legislation prohibiting legal marriage between Cherokees and people of African descent. Lastly, this essay considers Cherokee legislative provisions to include whites as marriage partners and citizens in the Cherokee Nation. Ultimately, this essay finds that Cherokee officials were redefining Cherokee Indians racially and used marriage laws to write and reinforce this new definition.
Cherokee Laws and Gender
The traditionally matrilineal organization of the Cherokee Nation emphasized the role of Cherokee women in continually creating and maintaining the tribe. (1) Until the nineteenth century, matrilineally determined clan affiliations were vital to legitimate membership in the Nation. The offspring of unions between Cherokees became members of their mother's clan. A Cherokee man joined his wife's household, which was usually centered around a group of sisters or a matriarch and her daughters, and continued his membership in his mother's clan. Cherokee women also maintained their own property, property which was inherited matrilineally, even after marriage. Clan membership gave one rights and protection in the Nation, and clans functioned as judicial bodies. For instance, clans enacted blood vengeance for the crime of homicide: murders were punished by the execution of the offender or a member of the offender's clan. (2) Matrilineal kinship meant that Cherokee women who married non-Cherokee men knew their children would have an undeniable claim to membership in the Nation. (3) Unions between Cherokee men and non-Cherokee women, however, produced children with no clan affiliations, and therefore, no rights in the Cherokee Nation. (4) For much of Cherokee history, being Cherokee meant being born of a Cherokee woman.
Cherokee women could also introduce new people into the Nation through their marital choices. Interracial unions between Indians and Europeans or Americans during the colonial period occurred most frequently between Indian women and 'foreign' men and usually resulted in the non-Cherokee man residing in the Nation with his Cherokee wife. (5) Cherokee women and European traders or frontiersman sought each other to gain access to goods or territory and to cement alliances. In a few instances these 'foreign' men would seek formal adoption into the Nation and concomitant clan membership; however, more often these men held the status not of clan members, but of the husbands of clan members. (6) That is, such men held a liminal position not entirely within the clan system, but also not bereft of any clan protections. In the nineteenth century, the strength of the clan system waned, and the concept of legal citizenship substituted for clan in determining legitimate membership in the Cherokee Nation. American men who married Cherokee women could then seek legal rights in the Cherokee Nation without participating in the traditional ritual of adoption. Cherokee women's marital choices gained salience in the nineteenth century as Cherokee women more frequently chose American men as spouses. (7)
Cherokee Nation lawmakers provided for the continuance of the practices of matrilineal inheritance of property and female property ownership despite the introduction into the citizenry, through intermarriage, of white men who pushed American ideas about women's relationship to property. An 1819 act stipulated that Cherokee women retained their property rights upon marrying white men and that a white man could not dispose of his Cherokee wife's property without her consent. (8) This legislation continued long-standing Cherokee tradition that women maintained property rights even during marriage and flew in the face of American law that did not offer similar recognition of women's right to own and control property while legally wed. (9) Should a white man abandon his Cherokee wife without good reason, he forfeited Cherokee citizenship and paid a settlement determined by the Cherokee Committee and Council for breach of marriage. The Nation intended these provisions to foil the practice of marrying Cherokee women solely to gain access to her property or Cherokee citizenship.
The concerns of Cherokee lawmakers mirrored those of white officials, who also noted that white men sought Indian wives to obtain land and property. In 1817 Hugh Montgomery, writing to William Rabun, governor of Georgia, to collect a fee for reporting such offenders, observed that "others (if possible) More Lax in their Morrels & Still Less Delicate in their taste will [Kiss] a Squaw for the privallage of their Land & Range, he then becomes a Landlord and he has his Croppers, Tenants, & Hirelings & c. & c." (10) Thirteen years later, however, Montgomery moderated his position because of the supposedly civilizing effect on Cherokee society of interactions between Cherokees and whites. He found that those Cherokees of mixed Indian and white ancestry were much further "developed" than their counterparts of Cherokee descent alone. (11) The changing land situation may have helped persuade Montgomery that white men residing on Indian land could have a positive influence on Indian society. As land became increasingly settled and scarce in states such as South Carolina, North Carolina, Georgia, Tennessee, and Kentucky, white men turned their sights on Indian territories where tribes seemed to own more land than they were able to cultivate. Marrying Indian wives was the only way for non-Cherokee men to gain control over land and citizenship rights within the Nation.
Part of lawmakers' concern with protecting women stemmed from a recognition that Cherokee women produced legitimate new members of society through childbirth. Traditional Cherokee beliefs imbued the process of reproduction with power. Cherokees believed that pregnant and menstruating women were extremely powerful, even dangerous to others. (12) Cherokee women also customarily had a great deal of control over their own reproductive activities, having the right to practice abortion and infanticide. (13) Initial contact with Europeans decimated native populations. By the early nineteenth century, the southeastern Indians may have been beginning to recover. (14) Intermixture with whites and Africans increased immunities to some diseases that had once devastated various tribes, and tribes were gaining some geographical stability. (15) For Indians, perhaps more than for any other North American group, the issues of reproduction and population growth were particularly salient. This understanding of the importance of childbirth to larger Cherokee society played out in laws to prevent abortion.
In 1826, the Council passed an act for punishing infanticide committed during pregnancy, or, more succinctly, abortion. (16) Women, as well as their accomplices, found guilty of this crime received fifty lashes. Those individuals convicted of falsely accusing a woman of this crime "through maliciousness, with the intent of injuring or destroying the character of such woman" also received fifty lashes and were ordered to pay a fine for the benefit of the slandered person. Clearly, the Nation perceived the crime of abortion as serious and the accusation as dangerous. After Removal, the new government again passed a law punishing infanticide, but without the stipulation of penalties for those who falsely accused women of the crime. (17) This act was one of the first passed by the new government, which reflects the urgency with which they approached the issue of infanticide. Many Cherokees died during the forced march from Georgia to the newly minted Indian Territory; concerns about sustaining the Cherokee population probably mounted in the aftermath of the Trail of Tears. The new law criminalized an act that had been the prerogative of Cherokee women.
Another adjustment in Cherokee marriage law recognized the children of Cherokee men and white women as Cherokee citizens, which weakened the position of Cherokee women who had formerly been necessary to reproduce the citizenry. The Cherokee Council extended citizenship to "'the children of Cherokee men and white women living in the Cherokee Nation as man and wife' and made them 'entitled to all the immunities and privileges enjoyed by citizens descending from the Cherokee race, by the mother's side'" in November of 1825. (18) Prior to the law's passage, the status of offspring produced in such unions was ambiguous. As a consequence of the 1825 legislation, Cherokee women were not the only women who gave birth to Cherokee children; white women could do so also. Or more accurately, Cherokee men could now create Cherokee citizens. Lawmakers were not ready to recognize all of the children of Cherokee men as citizens, however; the legislature did not include the children of Cherokee men and free black women as citizens. On the other hand, and in a nod to more traditional practices, a claim to Cherokee citizenship by birth to a Cherokee woman remained indisputable. The 1827 Cherokee Constitution, for instance, permitted citizenship, albeit with restrictions, for descendants of Cherokee women and free black men. (19)
Cherokee Regulation of Relationships with Blacks
Cherokee lawmakers' unwillingness to recognize the children of Cherokee men and free black women as Cherokee citizens reflects a larger trend in the racial thinking of the Nation. Throughout the nineteenth century, Cherokee authorities sharpened the line between Indians and people of African descent. The Nation also more closely aligned itself with the white race and adopted a racial ideology that focused on the difference between black and non-black instead of white and non-white. That is, whereas American society defined its members in terms that distinguished between those who were white and everyone else, the Cherokees chose to focus on the similarities among all non-black peoples, making the distinction between those who were black and everyone else. (20) This new racial identification was a great ideological shift for Cherokees who had seen themselves as not only distinct from whites, but distinct from other Indian tribes as well. (21) Cherokee legislation of marriage and sex between Indians and 'foreigners' illuminates changes in the racial ideology of the Nation.
Racial considerations crept early into the laws regulating marriage, laws which also articulated a racial hierarchy in the Cherokee Nation that resembled that of the larger American South. An 1824 law declared that "intermarriages between negro slaves and indians, or whites, shall not be lawful," and prescribed a penalty of 59 stripes on the bare back for Indian or white men marrying "negro" women slaves and 25 lashes for Indian or white women who married a "negro" man slave. (22) This act contradicts the myth that marriage, at least formal, recognized, legal marriage, between Indians and slaves was common. (23) Cherokee lawmakers were conflating race and status, shifting toward an understanding of race as signifying condition and vice versa. If they wanted to limit marriage between free and unfree people, why did they add the racial qualifier of "negro"? If the intent was to prevent interracial marriage, why did they include the term "slave" in the descriptor? The censuses of 1809 and 1835 listed only one racial category of slaves: "black slaves." Free blacks did not appear on the census, but "mixed negroes" did. (24) Individuals of mixed black and Indian ancestry may have been included in the larger category of "Cherokee" in the early part of the nineteenth century, but their position in society was definitely in transition. (25)
As for the rest of the antebellum South, for Cherokees black skin denoted slavery, and perpetual servitude applied only to black people. Slaveowners who permitted their property to intermarry with Indians or whites faced a fine of $50. The language of the Cherokee law prohibiting marriage with people of African descent was similar to 1662 and 1691 Virginia statutes which prohibited whites from marrying non-whites. Interestingly, the 1691 statute prohibited white men and women from marrying Negroes, mulattoes, or Indians. (26) Clearly the Cherokee Nation passed their own anti-amalgamation law to distinguish themselves racially from blacks while identifying as social equals with whites. The Virginia law placed both Indians and "negroes" outside the boundaries of acceptability by clearly stating that neither was an acceptable marriage partner for whites. In seventeenth- and eighteenth-century Virginia, whites regarded both blacks and Indians as occupiers of a position of inferiority in the social hierarchy. The Cherokee law reordered the hierarchy so that Indians and whites were equal legally and racially. Cherokees' passage of this law also echoed white Southern laws that constrained the behavior and rights of slaves, reinforcing the notion that Cherokees and whites shared values as slaveholding societies.
In a culmination of earlier Cherokee practices and attitudes, the Cherokee Nation passed the "Act to prevent Amalgamation with Colored Persons" in 1839. The act demonstrates the operation of two ideologies about the ordering of social hierarchies, using the language of both status and race. The act prohibited intermarriage "between a free male or female citizen with any slave or person of color not entitled to the rights of citizenship under the laws of the Cherokee Nation." (27) Unlike the earlier 1824 law, this statute did not list Indians, whites, and "negro" slaves as separate categories. (28) The term "free" encompassed both Indians and whites and excluded "negro" slaves; it was Indians' and whites' status as free individuals that united them. Slaves and "persons of color," on the other hand, shared a racial link as descendants of Africans. Invoking status to differentiate between groups had the benefit of incorporating racial distinctions: the vast majority of blacks in the Cherokee Nation were slaves. Perhaps some would argue that it was a shared status as non-citizens that made slaves and "persons of color" unsuitable as marriage partners for Cherokees. The law, however, did not prohibit marriage between just any non-citizen and Cherokees; whites and Cherokees could and did still wed lawfully. Lawmakers found the race, then, not the lack of citizenship, of free "persons of color" objectionable in potential marriage partners. (29) And so perhaps it was the race of the slaves, not their status as unfree people, that most concerned Cherokee authorities.
Marriage between slaves and free people had the potential to undermine the overall system of slavery. The ability of a slave to marry legally reinforced the humanity of individuals who were at once both property and human beings and fully neither. (30) Judicial officials might choose to emphasize a slave's status as property or as a human being depending on the circumstances of a case. (31) Slave owners bought and sold slaves as moveable commodities but also acknowledged slaves as human beings responsible for their actions: slaves could be prosecuted for murder, theft, or rape. Recognizing the ability of a slave to marry, however, implied a recognition of that union's right to exist, thereby circumscribing some of the authority of slave masters to dispose of property as they wished. A slave's marriage to a free person was fraught with more danger because of the interpretation of marriage as a contract between two equal parties. (32) Further, within the Cherokee Nation the ability to marry was a fundamental right of citizenship. A Cherokee could confer citizenship on a spouse through marriage. As a slaveowning society, the Cherokees passed laws that reinforced their ability to control their property and sanctioned the ownership of slaves. Thus, just as in the American South, Cherokee lawmakers would prohibit legal marriages between slaves and free people to preserve the institution of slavery. The law prohibiting legal marriages between colored persons and Cherokees or whites simultaneously distinguished between the free and slave to determine who could be legitimate members of Cherokee society, and adopted racial distinctions to keep those of African descent out.
The punishments for violating the statute did not vary by condition, but by race and gender. The law decreed "any colored male who may be convicted under this act shall receive one hundred lashes." Other violators, regardless of race or gender, received no more than 50 lashes as punishment. "Colored" men received the harshest penalties for transgressing racial and sexual taboos. As written, the punishment clause suggests several possible interpretations: first, lawmakers wanted to deter "colored" men, in particular, from participating in interracial sex; second, the enormity of the crime was greater when committed by a "colored" man; and finally, "colored" men required more correction to modify their behavior. In any case, the statute implies that the sexual behavior of men of African descent was particularly disturbing. (33) What Cherokee lawmakers found so threatening about this particular form of interracial marriage may have had less to do with "colored" men and more to do with the reproduction of legitimate members of society and the sexuality of Cherokee women.
On the surface, the law constrains the behavior of men of African descent, but perhaps another target of the anti-amalgamation statute was Cherokee women because of their ability to produce citizens. (34) Cherokee descent was matrilineal; citizenship could not be denied when gained by birth through a Cherokee woman. On the other hand, sexual relationships between Cherokee men and women of African descent, whether free or enslaved, did not produce Cherokee citizens. The famous exception to this operation of Cherokee law is the example of Shoe Boots. Shoe Boots, however, had to ask for special permission from the Cherokee Council to have citizenship rights granted to his children with a slave woman. Further, though the Council recognized the children's citizenship claims, the Council also warned Shoe Boots to "Cease begetting any more Children by his said Slave Woman." (35)
In sexual relationships with men of African descent, Cherokee women would produce Cherokee citizens of African descent. If Cherokee women married men of African descent, not only would their children be Cherokee citizens, so too could the husbands gain rights and privileges in the Nation. Cherokees at this time were trying to demonstrate to whites how alike Indians and whites were in government, in education, and in behavior. (36) Creating legal familial ties with the "colored" population and recognizing citizens who physically resembled slaves would not strengthen the contention that Cherokees were similar to whites when many states had anti-amalgamation laws on the books. (37) Circumscribing the behavior of "colored" men was another way to control the sexuality and reproductive power of Cherokee women without confronting this power directly. The law determined the boundaries, physically and ideologically, of Cherokee citizenship by limiting the sexual choices of women who were the mediators of legitimate membership in the Nation.
Interestingly, Cherokee legislators prohibited marriage, but did not outlaw sexual contact, between Indians or whites and "persons of color." Marriages, that is, legally contracted unions, bear the approval of the legitimating body. Cherokee lawmakers surely did not want to give the appearance to Americans of supporting or endorsing marriages between Indians or whites and people of African descent. As part of a slave holding society, however, legal authorities may have been unwilling to abridge the rights of masters over their slave property. Hence, the lawmakers restricted the prohibition to marriage and not sex. Given the inability of Cherokee men to bestow citizenship upon their children with women of African descent, Cherokee men had been unlikely to marry "colored" women prior to the passage of the 1839 legislation. Thus, the anti-amalgamation statute was unlikely to alter the marital behavior of Cherokee men.
Cherokee women, on the other hand, were unconstrained by concerns for the citizenship status of their offspring. Further, Cherokee women may have found men of African descent with agricultural experience attractive as potential mates. Traditionally, Cherokee women performed agricultural labor while Cherokee men provided meat through hunting expeditions. (38) Despite the best efforts of the federal government and its civilization program, many Cherokee men resisted American attempts to re-write gender roles and make farmers of native men. Men of African descent, however, often had obtained agricultural skills as slaves and, moreover, had likely abandoned any culturally-based reluctance to labor in the fields. Cherokee women might have sought partners who would contribute to the household economy. Thus, the law prohibiting legal unions between Indians or whites and people of color did circumscribe the marital options of Cherokee women.
Sexual relationships between Cherokee women and men of African descent were by no means common, but some evidence for such relationships prior to Removal does exist. (39) Historian Sarah Hill found a 14 year-old girl listed as the daughter of a Cherokee woman and "Negro" man in an 1851 census of Bird Town. The age of the girl indicates the relationship must have begun prior to Removal. (40) Further, William G. McLoughlin and Walter H. Conser, Jr., found 60 "mixed negroes," that is, people of Cherokee and African descent, in the 1835 census of the Cherokee Nation. (41) It is unclear whether these individuals were free or enslaved but their presence in the census does provoke questions. Many were likely the products of relationships between slave masters and slave women, but Cherokee women could also own slaves and participate in sexual relationships with black men. Also, the reminiscences of ex-slaves suggest relationships between Cherokee women and slave men that may have occurred prior to Removal. (42) Some relationships between Cherokee women and men of African descent also could have occurred during the colonial period when Indians were still vulnerable to enslavement.
Cherokee authorities found sexual contact between men of African descent and Cherokee or white women particularly threatening, imposing harsher penalties on men of African descent not only in consensual, legalized unions, but especially in coerced interactions. In 1839, the Cherokee legislature mandated that any "negro" convicted of raping a "free female, not of negro blood" received death by hanging as his punishment while other men endured 100 lashes. (43) Oddly, the 1825 law outlining the punishment for rape had made no distinctions in the race of the victim or race of the perpetrator. (44) The Nation obviously saw the crime of rape between a black man and a free woman as particularly dangerous and deserving of the harshest punishment. (45) Free female citizens were the producers of legitimate members of Cherokee society, and, as the statutes discussed indicate, Cherokee legislators had already begun limiting citizenship to those not of African descent.
The 1839 rape law also made a distinction between different kinds of women; some were apparently more sexually inviolate than others. Only the rape of a free women lacking "negro blood" merited the death of the perpetrator as punishment. The law equalized the status of Cherokee and white women by according the same punishment for attacks on the bodies of both and smoothed over racial differences between Indians and whites by pointing to the shared characteristic of not possessing "negro blood." The law reflected Cherokees' desire to emphasize status over race, to bridge the racial gap between Indians and whites. The amended law also raises the question of whether or not the Cherokee Nation recognized the crime of rape against black women's bodies in general and slave women in particular. Did "negro" men receive a lesser punishment for raping "negro" women? Did Indian or white men face any punishment for attacking "negro" women? Did Cherokee legal authorities recognize the possibility of raping a slave woman? The statute is maddeningly silent about such questions.
The National Council's attempts to limit the acceptable marriage partners of Cherokee women through the anti-amalgamation law may have reflected a larger legal effort to protect the racial purity of the Cherokee Nation. Penalizing "colored" men for marriages with Cherokee women reduced the number of potential sexual partners available to Cherokee women and, perhaps, led more Cherokee women to form unions with Cherokee men. Cherokee women were already intermarrying with white men in large numbers and creating a new kind of Cherokee citizen with ties to the outside white community. (46) Some lawmakers also wanted to remove white men as an option as potential partners for Cherokee women. As early as 1828, at least one Cherokee writer publicly aired specific misgivings about the high rates of intermarriage between Cherokee women and white men of poor character: in a fairly long opinion piece under the penname Socrates, the author disparaged marriages between Cherokee women and "the thief, the robber, the vagabond and the tippler and adulterer." Socrates called for more government regulation of intermarriage between whites and Cherokees. (47)
The Council did not, however, attempt to restrict the sexual choices of Cherokee men. The laws regulating interracial marriage with whites applied specifically to unions between Cherokee women and white men. Officials, of course, wrote legislation that recognized the presence of white women married to Cherokee men in the Nation, but did not regulate the terms for such unions. Cherokee men could marry white women or Cherokee women with equal ease. Apparently, legal authorities in the Nation did not think Cherokee men required protection from the clutches of scheming white women of questionable respectability. Cherokee men did not need the government to rescue them from their own inability to choose marriage partners wisely because Cherokee men tended to choose wives from within the Nation. Thus, intermarriage between Cherokee men and non-Cherokee women seemed to be less of an issue.
The laws regarding amalgamation applied to all Cherokee citizens, both male and female, but did little to restrict Cherokee men's sexual access to black women. Within the Nation, the overwhelming majority of black women were slaves. Much as in the American South, Cherokee slaveowners and overseers rarely sought legal unions with slave women. Cherokee jurisprudence did not recognize the children of female slaves as citizens; thus, there was little incentive for Cherokee men to legalize these unions. Cherokee women, conversely, could confer citizenship on their children and may have been more inclined to legalize unions even with slave men. Relationships between Cherokee men and black women tended to be informal when they arose, so prohibitions on marriage would not have affected them. The possibility of informal, undocumented unions between Cherokee men and black women does not suggest that sexual relationships between Cherokee men and black women were rampant or the norm between masters and slaves; instead, the lack of legal prohibitions on such unions points to the unwillingness of lawmakers, many of whom belonged to slaveholding families, to infringe on the prerogatives of masters over slaves or to constrain the sexual behavior of fellow men. (48)
Cherokee adoption of anti-amalgamation statutes and controls on the behavior of slaves may be interpreted as a bid for legitimacy through the imitation of Southern antebellum slave codes or as the efforts of a slaveholding society to protect its own 'peculiar institution'. (49) The Cherokees did pass laws to prohibit slaves, free "negroes" not of Cherokee ancestry, and mulattoes from owning property or improvements. Sheriffs were to confiscate and sell this property with the proceeds going to the violator. (50) The language of this 1840 statute, along with other codes regulating the behavior of people of color, implies that there were some "free negroes" who were of Cherokee descent, hinting, perhaps, at legitimate sexual relationships between Cherokees and blacks before Removal. Permitting a slave, whom slaveholding societies treat as a form of property, to own property undermines the entire system. How can a horse own a pig? Slave ownership of property recognizes the slave as something other than property and gives the slave and master a common status as property owners. What then, could prevent a slave from owning another slave? Oddly, the method for disposing of this property was fairly generous; even slaves would receive the profits from the sale of their property.
Another act intended to control the behavior of people of African descent made it illegal to teach "any free negro or negroes not of Cherokee blood, or any slave belonging to any citizen or citizens of the Nation, to read or write." The penalty was a fine between $100 and $500. (51) Again, the legal language of the act points to the presence of free people of both Cherokee and African descent in the Nation who were exempt from the prohibition on literacy for "negroes." For slaves, literacy could mean access to information through newspapers and books. This information might enable a slave to escape or plan insurrection. Slaveholders would find slave literacy frightening. Another law forced "negroes," residing in the Nation but not freed by a Cherokee citizen, to leave Cherokee territory. The Council viewed free "negroes" without ties to the community as particularly dangerous because they were potential inciters of rebellion and running away among slaves. (52)
In a departure from laws governing the behavior of slaves and free blacks in the antebellum South, Cherokee laws exempted free people of color with Cherokee ancestry from these prohibitions on behavior. There was no corresponding exemption in the slaveholding South for free people of color with white ancestry. Another difference between the Cherokee codes and Southern slave codes was that Cherokees forbade everyone--Cherokee, white, slave, and free--from carrying weapons. Only law officers could legally bear arms. (53) Given the Nation's history of violence just after Removal and the lingering practice of clan vengeance, legislators may have seen a real need for the law. (54) Much like current gun control proponents, Cherokees of the nineteenth century would have argued that keeping guns out of the hands of the masses would prevent widespread crime and violent behavior.
Thus, closer examination of Cherokee statutes which might have appeared to be carbon copies of Southern laws reveals that Cherokees were shaping legislation to meet their own needs and conceptions of citizenship. Ancestry was an important component of Cherokee identity and legitimate membership in the Nation, and the Council passed laws that recognized ancestry and its connection to the privileges of citizenship. The formulation that Cherokees blindly accepted wholesale the laws of the United States ignores Cherokee agency and real differences between Cherokee and American jurisprudence regarding slavery. Historian Theda Perdue notes that the Cherokee Nation adopted comparatively fewer laws governing the behavior of masters and slaves before the Removal. Further, the Cherokee codes usually reserved for the master the authority to punish slaves for rebellion or insubordination. (55) The slave codes of the antebellum South, on the other hand, were much more elaborate, governing many more aspects of slave behavior. Cherokees did not institute a pass system, organize patrols, or establish special courts or use regular courts to adjudicate charges brought against slaves. (56) Cherokees seemed to recognize the authority of the master as paramount and offered less government intervention to mediate the master-slave relationship. To regulate interracial marriage, citizenship, and slavery, the Cherokee Nation passed laws that meshed their own notions of racial categories and hierarchies and perceptions of Cherokee identity with the more practical concerns of establishing legitimacy with the United States as a sovereign nation and preserving slavery.
Cherokee Regulation of Marriage with Whites
In 1839, the same year in which the Cherokee legislature passed a strengthened anti-amalgamation statute prohibiting unions between Indians or whites and people of African descent, Cherokee authorities also more explicitly outlined the terms under which white men could legally marry Cherokee women and become citizens of the Cherokee Nation. The National Council required "any white man, or citizen of the United States, who may come into this Nation and take a Cherokee woman to wife" to obtain a written license from the clerk of the circuit or district court and be married by a minister of the gospel, a judge, or some other authorized official. (57) The license cost five dollars, which was expensive by contemporary standards. The clerk registered the issuance of the license to the couple who then gave the license to the person officiating at the marriage. The marriage official returned the license to the clerk after certifying that he had performed a marriage ceremony uniting the couple named in the license.
Obtaining a license, however, was not enough, for the law required proof that a marriage had indeed taken place. The high cost of the license was most likely aimed at preventing men of small means from marrying into the Nation for access to land and resources. The expense may have limited intermarriage to non-Cherokee men of some wealth or those who had the support of the prospective bride's family; her family may have been willing to contribute all or part of the cost of the license. People seem to value that for which they pay more. Non-Cherokee men who failed to comply with the provisions of the act, and for some the cost may have been prohibitive, or who legally married and then abandoned their Cherokee wives, would be denied any of the rights of Cherokee citizenship. If the Nation discovered that a man who had legally married a Cherokee woman had a wife elsewhere, Nation authorities would remove him as an intruder. The Cherokee Nation placed restrictions on intermarriage between Indians and whites while some state laws prohibited these unions entirely.
By 1840, apparently several members of the Cherokee Council were having second thoughts about permitting marriages between Cherokee women and white men and introduced a law to prohibit unions between any white men, good character not withstanding, and Cherokee women. Ethan Allen Hitchcock describes the circumstances surrounding the introduction and failure of the law in a stunningly revealing exchange with a woman of European and Cherokee ancestry:
Clearly, there were differing opinions among the Cherokees about the effects of intermarriage with whites: some saw intermarriage as a way to 'civilize' the population while others saw it as a threat. Marrying whites created social and legal ties with the United States, and white advocates of the Nation and Cherokee rights sometimes emerged from these unions. On the other hand, intermarriage with whites, particularly with white men, meant a change in the complexion of the tribe, not just physically, but socially and politically as well. (59) For instance, American officials pushed the Nation to change its inheritance laws so that white fathers could leave property to their Cherokee children, which disrupted the longstanding Cherokee tradition of matrilineal inheritance and altered how the Nation viewed property. (60) Cherokees traditionally regarded land property as communal, but the change in inheritance law signaled a move toward recognizing individual property rights and patrilineal inheritance.
The Council failed to pass this law prohibiting intermarriage with white men, in part because of the large number of Cherokee legislators and community elites of mixed racial ancestry such as Chief John Ross, the Bushyheads, and the Ridge family. (61) Rennard Strickland, a historian of the Cherokee legal system, argues that "much of the early written Cherokee law was an instrument designed to serve the needs of a small group of wealthy mixed blood Cherokees" and "mixed bloods freely acknowledged that the system was designed and introduced by a tribal minority." (62) Cherokee lawmakers often had close ties to the white community through marriage and as the product of such unions. Legislators were highly unlikely to legislate against the unions that produced themselves and many others in the Cherokee elite. Thus, the racial background of many Cherokee legislators militated against outlawing intermarriage between whites and Cherokees entirely. On the other hand, Cherokee authorities did create a complicated process that included petitions, oaths, testimonials, and a large fee that applied only to intermarriage between Cherokee women and "foreign men." Through this process, American men, largely white, became citizens of the Cherokee Nation. Legislation prohibiting intermarriage with people of African descent, on the other hand, would remain on the books throughout the nineteenth century. (63)
Contemporary writers and legislators couched the restrictions placed on women's sexuality in a language of protection and concern for the well-being of the Nation. Cherokee editorial writer Socrates claimed as early as 1828 that current laws were "extremely defective, inasmuch as every species of characters are privileged to marry our citizens usually to the injury of the woman, and a source of affliction to the parent." Cherokee women were the main victims of the failures of the intermarriage law. Socrates wanted to deny undesirable white men "the privilege of intermarrying with Cherokee women, and thereby rendering their existence wretched and inflicting a deep rooted and corrupted ignorance among our people." (64) Again, Socrates viewed Cherokee women as the beneficiaries of a change in the law. Socrates' statements imply unscrupulous white men easily and frequently took advantage of Cherokee women, who, in Socrates' view, perhaps lacked good judgment.
The court case of James Petit, which writer Socrates would no doubt have viewed as confirmation of his argument, reveals the potentially disastrous results for those Cherokee women who chose white spouses. The drama played out publicly on the pages of the Cherokee Phoenix. The story began with a notice placed by James Petit, a white man, accusing his wife Elizabeth, a Cherokee woman, of abandoning him with no cause and warning others that he would not be responsible for any debts Elizabeth incurred. (65) In February Elizabeth Petit responded by writing to the editor Elias Boudinot to share her side of the story. Elizabeth claimed that James had forced her from their home and destroyed all of her stock, for which she wanted some compensation. She was currently relying on the generosity of others to provide her lodging and sustenance. (66) By October of 1829, the Cherokee Council and Committee charged James Petit with bigamy and mistreatment of his Cherokee wife. The governing body fined Petit $500 and forfeited his plantation for the benefit of Elizabeth. She also retained custody of their child. (67) This case represents the workings of several different aspects of marriage laws and Cherokee custom: the limit of one wife for white men, a husband's inability to dispose of his wife's property, the prevention of the abuse of Cherokee wives, the matrilineal nature of clan membership for children, and the jurisdiction of the Cherokee Council over intermarried whites in the Nation. The laws, then, had teeth; they were not just statements for show to the United States, but a legal device for the protection of Cherokee women.
Cherokee men, however, appeared to marry whites less often and did not suffer any ill effects from their choice. In fact, Socrates did not mention this form of intermarriage at all. Statistics may explain this omission: despite the fairly even sex ratio between Cherokee males over age 18 and Cherokee females over age 16, the census records reveal that among marriages legally registered by clerks, rates of marriage between Cherokee women and white men were much higher than those between Cherokee men and white women. (68) Another reason why Socrates avoided criticizing the marital choices of Cherokee men may be that he was unwilling to advocate restricting the sexual choices of Cherokee men. (69) Socrates also made no references to intermarriage between people of African descent and Cherokees, which indicates just how far removed people of African descent were from acceptability as legitimate marital partners and/or members of Cherokee society. These unions were almost unthinkable.
In 1843 the National Council passed the "Act to legalize Intermarriage with White Men," which further tightened the provisions of the intermarriage law. Apparently, the Nation decided the conditions they had placed on intermarriage as a means of obtaining citizenship in 1839 were too vague and lenient. In this act, white men or other citizens of the United States hoping to marry Cherokee women had to make their intentions known to the National Council by applying for a license from the Clerk of the National Committee. (70) The Council revoked the authority of district and circuit court clerks to issue marriage licenses. (71) This new regulation meant that the National Council was informed of each white man living in the Nation as an intermarried citizen. More important, the law clearly pronounced that any non-Cherokee man who sought a marriage license in the Nation was choosing to "alienate himself from the protection of all other governments," renounce allegiance to any other country or government, and agreeing to abide by the Cherokee Constitution and laws. To ensure there was no confusion about this portion of the law, the President or Clerk of the National Council administered an oath to this effect to the would-be groom. (72) The law insisted that those men unwilling to swear the oath be removed from the Nation as intruders.
Three years later, the legislature followed up the revamped intermarriage act with a more permanent change in citizenship status for intermarried whites who lost their Cherokee spouses through death. The surviving widow or widower retained Cherokee citizenship unless he or she married a white person. (73) This law departed from an earlier 1829 act on the status of citizenship for intermarried whites, which had permitted continued citizenship for the surviving white spouse only if the union had produced children. Otherwise, the Nation revoked all of the privileges and rights of Cherokee citizenship. In both cases, remarrying a white person nullified citizenship for intermarried whites. The Cherokee government expected white spouses of Cherokees to live in the Nation, abide by the Nation's laws, maintain a Cherokee spouse, and have Cherokee children. The 1846 act regarding the status of intermarried widows and widowers solidified the position of intermarried whites within Cherokee society.
In 1855, the Cherokee Council passed an elaborate act to regulate intermarriage between white men and Cherokee women, complete with petitions signed by members of the tribe, oaths, testimonials of the worthiness of the potential spouse, and a large fee. This final iteration of the intermarriage act tested the resolve of white men to marry Cherokee women; the process was both complicated and expensive. The title of this law, "An Act Regulating Intermarriages with White Men," presumed, as previous intermarriage laws had done, that the only potential non-Cherokee marital partners for Cherokee women were white. White men still had to procure a marriage license from a clerk of one of the district courts and pay five dollars, but the law now also required the white men to take the following specific oath:
The language of the oath for intermarried white men made clear the precise nature of the commitment these men were making to the Nation; marrying a Cherokee wife was not just a private marital commitment between two people, but a public, national commitment. Before a white man could obtain this license or swear this oath, however, he had to present to the clerk a "certificate of good moral character, signed by at least seven respectable Cherokee citizens." This stipulation prevented white men of questionable behavior, those so lamented by Socrates in his newspaper article, from marrying Cherokee women. (75) Though the language of the laws did not identify Cherokee men as the only appropriate signers of the petition, invariably the prospective groom sought the signature of male citizens. (76)
Thus, Cherokee men maintained a method for monitoring and controlling the entrance of white men into the tribe as intermarried citizens. A white man could not marry into the Nation without first obtaining the approval of a number of Cherokee men. This new intermarriage act also still required ministers and judges who solemnized unions to attach a marriage certificate to the license and return the documents to the district clerk. The Nation only recognized marriages between citizens of the United States and Cherokee women that adhered to the conditions outlined in this act. Ministers who performed marriages between couples who had not obtained the necessary petitions and license could be taken to court and fined one hundred dollars. White men who had not complied with the act were to be removed as intruders. Numerous white women also appear in the marriage records while marrying Cherokee men and other U.S. citizens, but these unions rarely involved a license. The lack of paperwork indicated that marriages between white women and Cherokee men legally resembled same-race marriages between Cherokee citizens more than marriages between citizens and non-citizens.
Cherokee lawmakers apparently regarded non-Cherokee women marrying into the Nation as less threatening than their male counterparts; the legislators wrote no laws regulating this type of intermarriage. The law policing marriage between Cherokee women and foreign men did not apply to foreign women and Cherokee men: "At that time an Indian man could marry a white woman when he pleased ..." (77) No laws required white women to swear the oath of allegiance to the Nation. Nor did Cherokee men have to pay a fee to obtain a license to marry outside of the tribe. White women also did not seek petitions signed by Cherokees attesting to good moral character or affidavits from home counties about their reputation, voting behavior (obviously at this time women were not members of the electorate in the United States), or marital status.
The lack of a required oath of allegiance for white women marrying into the Nation was due partially to their legal position in the United States. Whereas foreign men presented a danger because of their ability to upset inheritance practices, turn to U.S. courts for redress of grievances, and challenge the political order, American women were not legitimate legal and political actors in the United States or in the Cherokee Nation. Women in the Nation, whether Cherokee or other, did not vote or hold political office in the nineteenth century. (78) And finally, in the realm of sexual choice, the introduction of more men into the Nation meant more competition between men for wives. Permitting a relatively simple process for marriage between foreign women and Nation members led to more sexual choice for Cherokee men. Cherokee lawmakers, an entirely male group, increased the options for themselves and other Cherokee men by choosing not to complicate the marriage act for this type of interracial couple.
Marriage and, specifically, intermarriage, then, were not solely private concerns but also public matters with potential consequences for the entire Cherokee Nation. In these terms, choosing a marriage partner was simultaneously an individual choice and a political action. Cherokee legislators recognized the importance of Cherokee women to the Nation as producers of legitimate members of society; thus, the attempt to regulate women's marital choices. Through the act of marrying non-Cherokee men, Cherokee women could display their displeasure with and modify the behavior of Cherokee men. Ms. Wolfe warned Cherokee men they "had better behave and stop drinking whiskey" if they wanted Cherokee wives. (79) Ms. Wolfe's admonition demonstrates that sometimes Cherokee men behaved no better than the white men disparaged by Socrates and Cherokee Phoenix editor Elias Boudinot. The subtext of Wolfe's warning is a subtle power play in which women wielded power through marriage choice. Whether intended or not, Cherokee women were indirectly making a negative statement about the attractiveness of Cherokee men as marriage partners by choosing white spouses in growing numbers. Socrates began his article with a sweeping statement about the necessity of sometimes surrendering the interests of the individual in order to preserve interests and existence of a nation. (80) In the end, however, Socrates advocates that only the interests of women be sacrificed: only the private marital choices of Cherokee women had potentially national consequences.
The legislation regulating interracial marriage was symptomatic of larger, ongoing social changes in Cherokee society. Faced with a binary American racial model that left little room for Indians, the Cherokees quickly recognized the need to create as much distance as possible between themselves and people of African descent. Instead, Cherokees and other Indians began formulating their own racial rubric, one that assigned Indians a position of privilege. The anti-amalgamation statute also recognized Cherokee women's central role in the creation of new citizens through reproduction and marriage. In an effort to control access to Cherokee citizenship, the Cherokee Council placed limits on the marital options of Cherokee women. Ultimately, the legislation regulating interracial marriage served two purposes: to place Indians and whites more firmly on the same side of the racial divide and to curb the power of Cherokee women to create new citizens.
1. For discussions of matrilineal descent in Cherokee Society see Theda Perdue's Cherokee Women: Gender and Culture Change, 1700-1835 (Lincoln, 1998), especially pages 81-83 and chapters 1-3; Perdue's, Slavery and the Evolution of Cherokee Society: 1540-1866 (Knoxville, 1979), 9; John Phillip Reid, A Law of Blood: The Primitive Law of the Cherokee Nation (New York, 1970), 113-122; J. Leitch Wright, Jr., Only Land They Knew: the Tragic Story of the American Indians in the Old South (New York, 1981), 235; Henry Thompson Malone, Cherokees of the Old South: A People in Transition (Athens, 1956), 17; Circe Sturm, Blood Politics: Race, Culture, and Identity in the Cherokee Nation of Oklahoma (Berkeley, 2002), 28; Carolyn Ross Johnston, Cherokee Women in Crisis: Trail of Tears, Civil War, and Allotment, 1838-1907 (Tuscaloosa, 2003), 11-13; and Rennard Strickland, Fire and Spirits: Cherokee Law from Clan to Court (Norman, 1975), 49-50.
2. Strickland, Fire and Spirits, 23-30.
3. Sturm, Blood Politics, 31.
4. Sarah H. Hill, Weaving New Worlds: Southeastern Cherokee Women and Their Basketry (Chapel Hill, 1997), 94.
5. Theda Perdue, "Mixed Blood Indians": Racial Construction in the Early South (Athens, 2003), 14-15, 21, 25, and 58; and Walter O'Meara, Daughters of the Country: the Women of the Fur Traders and Mountain Men (New York, 1968).
6. Perdue, "Mixed Blood Indians", 21.
7. Johnston, Cherokee Women in Crisis, 113-117. Many male missionaries also found spouses in the Cherokee Nation, see William G. McLoughlin, Cherokees and Missionaries, 1789-1839 (New Haven, 1984), 5, 25-26, and 175-76.
8. Laws of the Cherokee Nation 1852 (Tahlequah, Cherokee Nation, 1852), 10, hereafter to be referred to as LCN 1852. In 1829 the Cherokee government reiterates the importance and tradition of female citizens maintaining property rights during marriage by passing a similar law again, LCN 1852, 142-43.
9. Reid, A Law of Blood, 113. An 1829 law acknowledged the history of the tradition of married women's property rights: "Whereas, It has long been established custom in this Nation and admitted by the courts as law, yet never committed to writing, that the property of Cherokee women after their marriage cannot be disposed of by their husbands, or levied upon by an officer to satisfy a debt of the husband's contracting, contrary to her will and consent, and disposable only at her option," LCN 1852, 142-143.
10. July 3, 1817, Hugh Montgomery to Governor William Rabun, Telamon Cuyler Collection, Hargrett Rare Book and Manuscript Library, the University of Georgia Libraries, box 47, folder 11, document 2:4-5. Contemporary references to the frequency of relationships between whites and Indians include Winfield Scott, Autobiography of Lieut.-General Scott, written by Himself (New York, 1864), Volume 1: 318, and an August 3, 1817, note to Mr. Trott from Colonel R. J. Meigs, Cherokee Agency in the Southeastern Native American Documents, 1730-1842, GALILEO Digital Library of Georgia Database, document PA0001: 4.
11. Excerpt from Hugh Montgomery's letter to the Secretary of War reprinted in Cherokee Phoenix, May 1, 1830: 2.
12. Johnston, Cherokee Women in Crisis, 20.
13. Johnston, Cherokee Women in Crisis, 55.
14. Peter H. Wood, "The Changing Population of the Colonial South: An Overview by Race and Region, 1685-1790," Powhatan's Mantle: Indians in the Colonial Southeast, Peter H. Wood, Gregory A. Waselkov, and M. Thomas Hatley, eds. (Lincoln, 1989): 35-103, see 65.
15. Wright, Only Land They Knew, 280.
16. LCN 1852, 79.
17. Constitution and Laws of the Cherokee Nation: Passed at Tahlequah, Cherokee Nation, 1839-1851 (Tahlequah, Cherokee Nation, 1852), Section 4 of the "Act for the punishment of Criminal Offences," 18, hereafter to be referred to as CLCN 1839-1851.
18. LCN 1852, 57.
19. LCN 1852, 120: Article III, Section 4 of the July 1827 Constitution reads in part "The descendants of Cherokee men by all free women, except the African race, whose parents my have been living together as man and wife, according to the customs and laws of this Nation, shall be entitled to all the rights and privileges of this Nation, as well as the posterity of Cherokee women by all free men." Those of Negro parentage were prohibited from holding public office.
20. Peter Wallenstein discusses this black versus non-black way of understanding race and racial difference in his article on marriage in Oklahoma during the first half of the twentieth century in "Native Americans Are White, African Americans Are Not: Racial Identity, Marriage, Inheritance, and the Law in Oklahoma, 1907-1967," Journal of the West 39 (January 2000): 55-63, see 56-57. I would argue that what Wallenstein finds in the twentieth century is merely a codification of ideas that were already apparent in the nineteenth century.
21. Sturm, Blood Politics, 30-33, goes further by arguing that "In the first half of the eighteenth century, Cherokees distinguished themselves from Europeans, Africans, and other Native Americans not by skin color, race, or even language, but by membership in a Cherokee clan, which was theirs by right of birth or adoption." Sturm is stressing the importance and meaning of clan affiliations in the Cherokee Nation.
22. LCN 1852, 38. A growing population of whites lived in the Cherokee Nation by permit, that is, with governmental approval, and provided agricultural and skilled labor, McLoughlin, Cherokees and Missionaries, 25-26.
23. Rudi Halliburton, Red Over Black: Black Slavery Among the Cherokee Indians (West-port, 1977), offers a summary of some of the prevailing myths about slavery among the Cherokees, 4.
24. William G. McLoughlin and Walter H. Conser, Jr., "The Cherokees in Transition: A Statistical Analysis of the Federal Cherokee Census of 1835," Journal of American History 64 (December 1977): 678-703, see 680-82.
25. Tables 1 and 3 on pages 681-82 of McLoughlin and Conser's article, "The Cherokees in Transition," list "Mixed Negro" with the other Cherokees by blood: half-bloods, quarter-bloods, full-bloods, those mixed of mixed Cherokee and Catawba ancestry, and those of mixed Cherokee and Spanish ancestry.
26. James Hugo Johnston, Race Relations in Virginia and Miscegenation in the South, 1776-1860 (Amherst, 1970), 172, and Joel Williamson, New People: Miscegenation and Mulattoes in the United States (Baton Rouge, 1980), 8.
27. CLCN 1839-1851, 19.
28. LCN 1852, 38.
29. Halliburton, Red Over Black, 36, and Perdue, Slavery, 36.
30. See Mark V. Tushnet, The American Law of Slavery, 1810-1860: Considerations of Humanity and Interest (Princeton, 1981), especially 158-169 for a discussion of slaves' peculiar status as property and human beings with free will and rights based in humanity. Arthur F. Howington also discusses this duality for slaves in "'Not in the Condition of a Horse or an Ox': Ford v. Ford, the Law of Testamentary Manumission and the Tennessee Courts' Recognition of Slave Humanity," Tennessee Historical Quarterly, 34 (Fall 1975): 249-263.
31. Howington, "'Not in the Condition of a Horse or an Ox'", 251.
32. Wilbert E. More, "Slave Law and the Social Structure," Journal of Negro History, 26 (April 1941): 171-202, especially 194-195.
33. The fear of black men's unrestrained sexuality was not limited to the Cherokees or the nineteenth century. British colonial legislators "devised a uniquely American criminal penalty, castration, as a means" of deterring black men from raping white women early in the eighteenth century, John D'Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in America (New York, 1988), 35-37.
34. Hill, Weaving New Worlds, 162-163. Glenda Gilmore, Gender and Jim Crow: Women and the Politics of White Supremacy in North Carolina, 1896-1920 (Chapel Hill, 1996), particularly in chapter four.
35. See Cherokee National Records Microfilm Series, Roll 46, Folder 6508, October 20, 1824, available at the Oklahoma Historical Society. Hereafter the Cherokee National Records Microfilm Series will be referred to as CNRMS.
36. Elias Boudinot, Cherokee Editor: The Writings of Elias Boudinot, Theda Perdue, ed. (Knoxville, 1983), 72, 96, 114-117, and 166-169. Samuel Worcester, New Echota Letters: Contributions of Samuel A. Worcester to the Cherokee Phoenix, Jack Frederick and Anna Gritts Kilpatrick, eds. (Dallas, 1968), 85.
37. D'Emilio and Freedman, Intimate Matters, 35-36.
38. Perdue, Slavery, 52.
39. Perdue, Slavery, 85.
40. Hill, Weaving New Worlds, 155.
41. McLoughlin and Conser, "The Cherokees in Transition," 694.
42. See George P. Rawick, ed., The American Slave: A Composite Autobiography (41 vols. and index; Westport, Conn., and London, 1972-1981), Supplement, Series 1, Vol. XII: Oklahoma Narratives, Pt. 1, 281.
43. CLCN 1839-1851, Section 3 of 'An Act for the punishment of Criminal Offences', 17-18. The 1866 reprint of the compilation of the laws of the Cherokee Nation, Laws of the Cherokee Nation, Passed During the Years 1839-1867, Compiled by the Authority of the National Council (St. Louis, 1868), 16, contains this same law without reference to the different penalties for rape for Negro men. Hereafter this compilation will be referred to as LCN 1839-1867.
44. LCN 1852, 53-54.
45. See D'Emilio and Freedman, Intimate Matters, 36-37, for some discussion of the fear of black men raping white women in the American colonies.
46. One estimate is that in the southeastern states, marriages between Cherokee women and white men accounted for one-fourth of all Cherokee marriages during the first half of the nineteenth century, D'Emilio and Freedman, Intimate Matters, 91. Johnston argues that the trend increases after the Civil War, see Cherokee Women in Crisis, 113-117. My own research in marriage records for the second half of the nineteenth century also indicates an upward trend in marriages between Cherokee women and white men.
47. Socrates, "Intermarriage," Cherokee Phoenix, April 3, 1828: 4. His comments also indicate that Cherokee women are the most likely to intermarry with whites. See also Elias Boudinot, Cherokee Editor, 72.
48. Article III, Section 4, of the 1827 Constitution limited governmental offices to male citizens of the Cherokee Nation, LCN 1852, 120.
49. Halliburton, Red Over Black, 56, points out that the Cherokee Phoenix often printed news of laws passed by the U.S., including those to control the behavior of blacks. This most likely had some influence on the laws passed by the Council. As slaveholding societies, both the Cherokee Nation and the U.S. faced similar problems regarding their slave property, making it logical that one might look to the other for guidance in managing slaves.
50. CLCN 1839-1851, 44.
51. CLCN 1839-1851, 55-56.
52. CLCN 1839-1851, 71.
53. CLCN 1839-1851, 55.
54. See Littlefield, Cherokee Freedmen, 3-9, Perdue, Slavery, 68-72, and Russell Thorn-ton, The Cherokees: a Population History (Lincoln, 1990), 74-76 for discussions of Removal's effects on Cherokee society.
55. Perdue, Slavery, 57.
56. John Hope Franklin and Alfred A. Moss, Jr., From Slavery to Freedom: A History of African Americans (8th ed.; Boston, 2000), 140-143.
57. CLCN 1839-1851, 32-33.
58. Ethan Allen Hitchcock, A Traveler in Indian Territory: the Journal of Ethan Allen Hitchcock, late Major-General in the United States Army, Grant Foreman, ed. (Cedar Rapids, 1930), December 7, 52-54. Ms. Wolfe is the daughter of a Mr. Wolfe who hosts Hitchcock for dinner. Hitchcock describes Mr. Wolfe as a "half-breed" with a Dutch wife, making Ms. Wolfe one quarter Cherokee, entry for November 30, 37. Their status as individuals of European and Cherokee ancestry certainly must have influenced their opinions of intermarriage with whites.
59. D'Emilio and Freedman, Intimate Matters, 90-91.
60. Hill, Weaving New Worlds, 95-96. Wright, Only Land They Knew, also discusses the changing perceptions of land ownership among southeastern Indians, 225-227.
61. Malone, Cherokees of the Old South, 53-56, discusses Ross' lineage as well as the positive influence of whites and individuals of European and Cherokee ancestry as members of an economic and political elite, in the process of 'civilizing' the Nation. Thurman Wilkins, Cherokee Tragedy: the Ridge Family and the Decimation of a People (2nd ed.; Norman, 1986), discusses the European and Cherokee lineage of Major Ridge on pages 7 and 99, and John Ross on pages 73 and 205. William G. McLoughlin also mentions Major Ridge's mixed race heritage in Cherokee Renascence in the New Republic (Princeton, 1986), see illustrations following page 266. Hill, Weaving New Worlds, states on page 94, "From 1791 until the removal, descendents of mixed marriages increasingly assumed positions of leadership and influence ..." Listings of members of the Cherokee Council, Committee and Judiciary were also available in each issue of the Cherokee Almanac as well as in compilations of the Constitution and laws passed by the Cherokee Nation, LCN 1852. Similarly, Don L. Shadburn's close examination of land owning patterns and census materials of the Cherokee planters in Georgia in Cherokee Planters in Georgia, 1832-1838: Historical Essays on Eleven Counties in the Cherokee Nation of Georgia (Roswell, GA, 1990) "reveals that Cherokee mixed bloods and intermarried white men made up the larger class of fashionable nineteenth-century planters and slaveholders" (p. 11).
62. Strickland, Fire and Spirits, 73.
63. The Oklahoma state constitution continued to prohibit marriages between Indians or whites and people of African descent in the twentieth century. See Wallenstein, "Native Americans Are White, African Americans Are Not: Racial Identity, Marriage, Inheritance, and the Law in Oklahoma, 1907-1967", 57. The provisions, of course, did not prevent all such unions between blacks and Cherokees from taking place.
64. This and the preceding quotation from Socrates, "Intermarriages," Cherokee Phoenix, April 3, 1828: 4.
65. Cherokee Phoenix, January 14, 1829: 3.
66. Cherokee Phoenix, February 4, 1829: 2.
67. Cherokee Phoenix, November 4, 1829: 3.
68. McLoughlin and Conser, "The Cherokees in Transition", 681-682, Tables 1 and 3, for 1835 census materials.
69. I refer to Socrates as a male because of the name choice and the lack of female authors as contributors to the Cherokee Phoenix in the nineteenth century.
70. CLCN 1839-1851, 92-94.
71. CLCN 1839-1851, Section 5: 94.
72. CLCN 1839-1851, Section 1: 92-93.
73. CLCN 1839-1851, p. 142.
74. LCN 1839-1867, 104-105. The 1843 intermarriage act also included an oath, but the language of the oath was not given.
75. Socrates, "Intermarriage," Cherokee Phoenix, April 3, 1828: 4.
76. For examples see CNRMS, Roll CHN 32, Volume 62B.
77. Indian-Pioneer History, Volume 2: 386-388. The Works Progress Administration conducted interviews with individuals who had resided in the Indian Territory during the nineteenth century and compiled the Indian-Pioneer History, available at the Oklahoma Historical Society.
78. Perdue, Cherokee Women, 145.
79. Hitchcock, A Traveller in Indian Territory, December 7 entry, 52-54.
80. Socrates, "Intermarriages," Cherokee Phoenix, April 3, 1828: 4.
By Fay Yarbrough
University of Kentucky
Department of History
Lexington, KY 40506
[Ms. Wolfe] Says that last year some of the council wanted to make law prohibiting white men from marrying among the Cherokees, and she thought they would have passed the law but for her father; that he was abused, accused of wishing to have white men marry his daughters; that he told them such a law would put them back to their former state of wildness. Then she remarked that Cherokee men had better behave better and stop drinking whiskey and then the 'Cherokee girls would marry them.' (58)
I do solemnly swear that I will honor, defend, and submit to the constitution and laws of the Cherokee Nation and will neither claim nor seek from the United States government or its judicial tribunals any protection, privileges, or redress, incompatible with the same as guaranteed to the Cherokee Nation by the United States, in treaty stipulations entered into between them. (74)
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