“Foreword to the Reissue” in “Laws of the Creek Nation”
Foreword to the Reissue
On July 9, 2020, the U.S. Supreme Court issued a landmark ruling in McGirt v. Oklahoma, recognizing that the Muscogee (Creek) Nation’s promised reservation, as established by treaty in 1866 in Indian Territory, still has legal status as a reservation in the twenty-first century. Once again, the people of the Muscogee (Creek) Nation (MCN), known as the Mvskokvlke, have persevered despite the odds.
As the contemporary MCN prepares to retake the reins of self-government within the boundaries of the reservation, it is perhaps an ideal time in which to reflect on the legal history of the Mvskokvlke people. As one of the first tribal nations in the United States to codify its laws in English, the legal story of the Mvskokvlke also offers insight into the development of tribal statutory development in the nineteenth century. It also offers glimpses of Mvskoke legal principles and values that predate the establishment of the United States.
Waring’s original 1960 introduction contains a full treatment of the historical context in which these laws were communicated to the Georgia governor and offers insight into the sum of the laws themselves. As we approach the two hundredth anniversary of the Treaty of Indian Springs, it is worth considering how these laws continue to have relevance for contemporary Mvskokvlke and for the fields of American Indian studies and Indian law. This twenty-first-century reflection provides some insight into what contemporary readers of the document can learn about Mvskoke laws and culture, with a fresh perspective on some of the important gendered and racialized laws.
These 1824 McIntosh laws were not the first written laws of the Mvskoke people. In 1818, a list of eleven written laws (primarily criminal) was presented to David Brydie Mitchell, the Indian agent to the Creek Nation, signed by Chilly McIntosh’s father, William, and four other Creek leaders. The 1824 laws expanded on the 1818 laws, with many of the same laws appearing in the 1824 version, which had over fifty-five laws.
We know that Chilly McIntosh, who served as the clerk to the Creek National Council and as an interpreter for the council’s laws, hand-scribed the laws passed by the Creek National Council between 1817 and 1824. At that time, there was no written Mvskoke language—that would come several years later, after removal to Indian Territory, when Christian missionaries needed a written language to teach and spread the gospel. By the late 1840s and early 1850s, Creek leaders and Christian missionaries formalized a written Mvskoke language that continues to this day.1
We do not know the precise method by which the McIntosh laws were passed or recorded. Typically, the Grand Council in this time period met at least once a year.2 It’s likely that the laws were passed in the Mvskoke language and Chilly McIntosh translated them into English for codification purposes. To the extent that there might be some concepts that could be lost in translation, it’s important to note that Chilly McIntosh himself could be characterized as a highly assimilated Creek who was also a baptized Christian. This may have colored both his intentions and translations.
The laws themselves offer a fascinating glimpse into the working of Mvskoke law and governance. Of the fifty-seven laws, at least twenty can be characterized as criminal in nature, including several substantive laws prohibiting murder, rape, adultery, and theft. In addition, the laws reference criminal defenses, including self-defense and intoxication. In terms of sanctions, the murder laws all provide for execution of the offender. Other crimes have an escalating series of sanctions for repeat offenders: for the first offense, the offender would be whipped; for the second offense, the offender would be cropped (ear cut off); and for the third offense, the offender would be executed.
Laws pertaining to governance and leadership offer a glimpse into some of the intragovernment struggles that the Mvskoke people were experiencing. The 28th law, dated as passed in 1819, acknowledges that there had been issues with town governments (independent local Mvskoke governments) seceding from the national government. Such seceding towns “shall have no claims upon this Country without the Consent of the Hole Nation.” There had also apparently been issues with law enforcement officials failing to enforce the laws or using their position to abuse others. The second law, numbered as 32nd, requires the termination (“broke”) of such law enforcement officials. Slander against government officials was prohibited by the 43rd law, which reads, “If person or persons should give bad talk against Warriors or chiefs, he shall be punish.” Perhaps the most significant law in this category is the 33rd, which requires that persons who “tell such lies as should be brought to disturpence of the Nation” could be executed. Some historians believe that this may be the law that compelled the execution of Chilly’s father, William McIntosh, for treason in 1825 for signing a removal treaty without authorization.
Also clear is that the Mvskokvlke people were struggling to maintain control over white men’s behavior on their lands. Five of the laws (19th, 41st, 42nd, 49th, and 55th) specifically mention “White Man.” It is clear that the drafters of these laws sought to exclude white men from their lands unless they had received formal governmental approval. The 49th law prohibits allowing a white man into the nation unless “the hole Nation agree to it.” A white man who worked for a Mvskoke citizen was required to “go back into his own Country” after the work was completed (41st), and the 42nd law required that White men who overstayed their welcome pay a fine of “one dollar for every day.”
Arguably, the most fascinating aspects of these laws pertain to issues of race and gender. At the time these laws were drafted, some Mvskoke people owned slaves of African descent and practiced plantation-style agriculture, which was authorized by the national government. Several laws pertaining to slaves (sometimes called “Negroes”) reflect a government in which slavery was an entrenched part of society. While individual owners were authorized to free their slaves under the 22nd law, other slave laws reflect the development of a clear racial hierarchy in which persons of African descent were afforded less protection from the Nation. Homicide against a “negro” for example, could be avenged by the mere payment of the “value” to his owner rather than execution (3rd). Mvskoke people who captured and returned “Runaway” slaves received compensation in the amount of fifteen dollars (26th). The 20th law is an antimiscegenation law, requiring the seizure of property from Mvskoke people who married a “Negro,” adding that “it is a disgrace to our Nation for our people to marry a Negro.”
Even after removal to Indian Territory, chattel slavery remained a fairly common practice in the Creek Nation. Following the U.S. Civil War (in which many Mvskoke people aligned with the Confederacy), the Creek Nation signed a peace treaty in 1866, which, among other things, required that Creek people end the practice of slavery and bestow among former slaves “all the rights and privileges of native citizens, including an equal interest in the soil and national funds.”3 Despite this clear treaty language, the Creek Nation still struggles with the legacy of slavery in the twenty-first century. In 1979, when the Creek Nation ratified its current constitution, the citizenship provisions denaturalized the descendants of freedmen and -women by declaring that only persons who are “Muscogee (Creek) Indian by blood” would be eligible for citizenship.4 Challenges to these constitutional provisions by descendants of freed people in the twenty-first century have thus far been rebuffed by MCN courts, including twice by the Supreme Court.
In terms of gender, four provisions are worthy of close examination. Two of these gendered laws provide for punishment of women for behavior that is not similarly circumscribed for men. The 46th law requires that a widow refrain from marrying again until permission is granted by her late husband’s family. Failure to comply with the wishes of the family would result in corporal punishment and disfigurement. The same punishment could befall a woman who committed adultery (48th).
Conversely, two other laws reflect a society in which Mvskoke women were offered protection that may not have been granted to white women under American laws in the nineteenth century. The 19th law protects Mvskoke women and children from abandonment by white husbands, requiring that such a husband “leave all his property with his children for their support” when leaving the Nation. This law appears to be a newer version of a law found in the 1818 laws presented to Agent Mitchell. The 1818 law regarding abandonment by white men provides more substance in terms of legislative history, reading, “It has often happened that white men have come into our Nation poor, and taken an Indian woman to wife by which they had children, and when they have gotten their hands full, they have got tired of the country and left their wife & children to suffer, which we think very unjust.” In American jurisprudence in the early nineteenth century, women were required to petition a court for property and alimony in the aftermath of divorce, and typically such awards were dependent on “fault,” wherein the wife would have to prove extreme cruelty or abandonment to sustain a request for divorce and support. But the Creek law did not require the former wife of a white man to plead her case—the property was required to be left with the family regardless of the cause or circumstances of such abandonment.
Finally, the 35th law prohibiting rape offers another glimpse into a society that apparently did not always subscribe to patriarchal ideas. The penalty for those who “force woman and did it by force” was apparently left to the victim, providing agency for victims of sexual assault that did not exist in American law. The poignant phrase “what she say it be law”—the final phrase in the statute—stands in sharp contrast to Anglo-American principles in which sexual assault was closely intertwined with women’s subservience to men. At no time has an American law ever provided victims of crimes with the agency to determine the appropriate punishment for a violent crime.
While there are many historical documents about the Mvskokvlke people prior to removal to Indian Territory, this particular document is one of only a few documents written by and for the people of the Creek Nation. It provides unique insight into how Mvskokvlke people governed themselves and ample material for contemporary researchers and scholars who are committed to the investigation and explication of tribal law in the United States.
SARAH DEER, J.D.
Notes
1. Jack B. Martin and Margaret McKane Mauldin, A Dictionary of Creek/Muskogee (Lincoln: University of Nebraska Press, 2000), xvii–xviii.
2. Sarah Deer and Cecilia Knapp, “Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (the Carpet under the Law),” Tulsa Law Review 49 (2013): 125, 138.
3. Article 2, U.S. Treaty with the Creek Nation, June 14, 1866.
4. Muscogee (Creek) Nation Constitution, Article II, Sec. 1; Article III, Sec. 2 and 3 (1979).
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