The Legend of Cherokee Law
The Cherokee system of Law was based more on responsibility for wrongful actions than on the notion of 'justice' in the western sense of the word. Rather than justice, the Cherokee system was ideal for keeping balance and harmony in the spiritual and social worlds.
One day, some Cherokee children were playing outside, when a rattlesnake crawled out of the grass. They screamed and their mother ran outside. Without thinking, she took a stick and killed it.
Her husband was hunting in the mountains. As he was returning home that night, he heard a strange wailing sound. Looking around, he found himself in the midst of a gathering of rattlesnakes, whose mouths were open and crying. What is the matter,' the man asked the snakes. The rattlesnakes responded, 'Your wife killed our chief, the Yellow Rattlesnake today. We are preparing to send the Black Rattlesnake to take revenge.'
The husband immediately accepted their claim and took responsibility for the crime. The rattlesnakes said, 'If you speak the truth, you must be ready to make satisfaction.' The price they demanded was the life of his wife in sacrifice for that of their chief. Not knowing what else might occur, the man consented.
The rattlesnakes told the man that the Black Rattlesnake would follow him home and coil up outside his door. He was to ask his wife to bring him a fresh drink of water from the spring. That was all.
When the man reached home, it was very dark. His wife had supper waiting for him. 'Please bring me some water,' he asked her. She brought him a gourd from the jar, but he refused it. 'No,' he said. 'I would like some fresh water from the spring.' His wife took a bowl and stepped outside to get him some fresh water. The man immediately heard her cry. He went outside and found the Black Rattlesnake had bitten her and she was already dying. He stayed with her until she was dead.
The Black Rattlesnake then crawled out of the grass. 'My tribe is now satisfied,' he told the husband. He then taught the man a prayer song. The Black Rattlesnake told him, 'When you meet any of us hereafter, sing this song and we will not hurt you. If by accident ne of us should bite you, sing this song over the person and he will recover.' And the Cherokee have kept this song to this day.
We had a strict liability law for any killing. The death created an imbalance which required revenge to restore harmony. The clan of the perpetrator of the homicide was to admit and accept responsibility for the wrongful killing. Then the clan was expected to pay the cost. Blood called for blood. Following this system, the husband sacrificed his wife's life to restore harmony. He did so because that was the law. In following the law, harmony was restored between the rattlesnakes and the humans. To reward the man, the snakes gave the humans a song to protect them and to remind the snakes of their duty to the humans, as well.
The Cherokee religion drove the sense of balance, which created a moral system for the human to follow. What drove the revenge system was the sense of balance. When a delict was committed, it created imbalance and tension on the jurisdictional unit. The acceptance of responsibility and paying of the cost restored that balance. Once the balance was restored, the relationship between the jurisdictional units or clans continued as if nothing happened. There were to be no hard feelings expressed between family members of the victim or killer. Balance had been restored and any friction was to end with the restoration of balance.
The creation of imbalance was tied to the Cherokee religion. It was believed that the murdered 'soul' or ghost would be forced to wander the earth, unable to go to the next world. This created the imbalance. The acceptance of responsibility and the death of the killer or one of his clansmen restored balance by freeing the innocent ghost, allowing him to go to the next world. That is why it did not matter who paid the cost for the delict of the wrongful killing. Any death from the responsible clan would suffice to free the innocent man's ghost from this world. An enemy scalp might suffice as well.
In international law, the Cherokee system worked much the same way. If an international delict occurred, then anyone from the that jurisdictional unit, in this case, the foreign nation, would suffice to pay the cost. Taking responsibility for the international delict and paying the cost were exercised in the face of swift vengeance. There was no time for contrition. Thus, interloping settlers took their chances by moving onto Cherokee territory, because they might be called to pay the cost for someone else's actions or the actions of their nation. Cherokees saw it as their responsibility, whether or not the settlers saw it that way.
(The is an excerpt from Mr. Rutledge's Forgiveness in the Age of Forgetfulness.)
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