I mean you no harm. If I meant you harm, I would start by using your name. Every literate Cherokee knows your name. At the time before the Trail of Tears, the Cherokee Nation had a higher literacy rate than the white settlers and gold seekers who coveted the Cherokee homelands. We cannot match that literacy rate even today, but most of us do read and write.
I write this knowing that you’ve succeeded in bringing the government to your side. You even got The New York Times on your side, and I understand that’s significant. When the Times takes your side, it’s no longer an issue between liberals and conservatives, between those with reverence for what “Native Americans” represent to them and the modern Indian fighters who think we are the walking dead.
The Times is the newspaper of record in the United States. Indian Country Today Media Network is the newspaper of record in Indian country, even though it’s not a newspaper any longer and Indian country no longer has fixed borders.
The status of this publication brings up another reason I would not say anything ugly about you. Veronica will grow up. You had the money on your side and now you have the guns, so chances are she will grow up calling you mommy and daddy. I, too, have adopted children, and I understand that relationship.
When Veronica grows up, she is going to investigate, and what I write is part of the trail she will discover.
I’ve written in these pages that the duty of a lawyer in a capital case is to force the jury to understand the life they are being asked to end. You need to understand the people you are helping to destroy because you believe them to be standing in the way of a better life for Veronica.
At the risk of pointing out the obvious, Veronica is brown. I don’t know you, but I expect you consider yourselves colorblind and you intend to raise her to be the same. While I honor your intentions, I must observe that color is part of the reason Veronica will be reading these words at some point.
It’s ironic that she gets more of her brown from her mother than from her father, but that’s part of the history she’ll discover.
I do hope you don’t try to teach her that color makes a Cherokee. If you make too much of that ignorant garbage uttered during the Supreme Court oral argument—“two Cherokee ancestors in George Washington’s time”—this will not end well when Veronica gets her education.
I know you did not start out to destroy the Indian Child Welfare Act. That law was just in your way, and you were fortunate to face a SCOTUS that understands the current status of Indians is not tenable within fundamental US legal norms but is not prepared for the heavy lifting it would take to reimagine John Marshall’s jurisprudence from a 21st century human rights perspective. Therefore, laws that appear to advantage Indians are in the way of e pluribus unum.
The liberals among them mean the Cherokee Nation no more harm than you do. We are just in the way. The conservatives among them think Indians live in an 18th century fantasyland, and the fact is that some Indians do. If Veronica is as bright as she appears to be, she will in her college years understand why that might be the case.
The Cherokee Nation that now lives invisible to you and most of America has been a constitutional republic since 1827, but as free and independent peoples we go back long before white people came to this continent.
Like the United States under the Articles of Confederation, we used to be a confederation of independent towns. We only came together to act as one people when attacked from the outside. Traditionally, we separated war leadership from peace leadership because we believed that the skillsets for governing a free people differ from those for making successful war.
In the early contact literature, you will find a couple of things that mark us as ignorant savages, even though we were sedentary and producing an agricultural surplus. Make sure Veronica knows that, by the way. We lived in wooden houses—not tipis, wickiups, or hogans---and we did not follow the buffalo herd around, there being no buffalo herd in the forest.
We did construct some pretty amazing fish traps on the rivers and we ate a lot of venison. To this day, many of us eat a lot of venison. We believed, and many of us still believe, that all living things have spirits and the human spirit is not necessarily superior to the deer spirit or the fish spirit. In our origin stories, there is even a pivotal role for a water spider.
According to our traditions, much human sickness comes from humans mistreating other animals. Therefore, we apologize when we kill for food, and express our gratitude.
I normally don’t write much about our spiritual beliefs because it’s not the business of those who don’t share our beliefs and we have no custom of forcing our beliefs on others. “The spirit world,” a Cherokee elder told me, “takes care of its own business.”
We grew the Three Sisters crops—that would be corn, beans, and squash—and we gathered medicine in what you call the Smokey Mountains. Our language was the language of trade, at various times, all the way from far southern Virginia to far northern Florida.
Our language is closely related to the Six Nations, who were also peoples who produced an agricultural surplus when white people arrived. There are conflicting stories among the Six Nations and among the Cherokee about how we came to be separated, but the linguistic and DNA evidence make it clear we were, back in the mists of time, one people.
One way both the Six Nations and the Cherokee were considered inferior savages is in the political role of women. In the Six Nations, women did not traditionally speak in council, but they picked the men who did, and the men served at the pleasure of the Clan Mothers. In the Cherokee Nation, women did speak in council if sent by their clan and women could hold any political office, including war chief. The fact that you see no women’s marks on Cherokee treaties is an artifact of what the white people wished, not Cherokee custom.
Another indication of our barbarism is that we held land in common. This was a custom that lasted much longer than women’s equality, right up to the loss of our reservation to make Oklahoma. Cherokee land law was about usufruct, not ownership.
I relate these judgments by white writers to help you render your own judgments. If you have not already, you will come to judge the Cherokee people as you have judged Dusten.
Now, I know you believe Dusten is not the sharpest knife in the drawer, and I won’t deny he made a lot of young man’s mistakes. I am not informed whether he lacked guidance or was just hardheaded, but neither is a fatal character flaw.
To a young man, “child support” is not support for a child. It’s giving money to a woman with whom you are seriously crosswise, and it’s hard to do. You tell yourself that you are rewarding her bad behavior.
A lawyer friend of mine, having filed his fourth divorce action for himself, was asked whether he would marry again? “No,” he said, “I’m going to cut out the middleman. I’ll just find a woman I hate and buy her a house.”
When you have just gotten your heart broken, child support feels like paying for the privilege. That’s an explanation, not an excuse.
I realize now that I’ve discussed Cherokee traditions in almost everything but family law, which is the heart of what Veronica will be investigating.
Divorce was simple and easy. The man, having come to live near the woman’s clan upon marriage, had to take his personal equipment and leave. Personal property of the parties remained theirs and, as I’ve explained, there was no law of ownership of real property.
If divorce was so easy and uncomplicated in traditional times, why did nuclear families remain together? Wasn’t the divorce rate higher than now?
No, it was not, because just as there were no property issues upon divorce, there were no child custody issues. The children were born into the mother’s clan, and with that clan they remained.
Cherokee fathers were not the disciplinarians of the nuclear family. That role was for a male of the same clan as the child; normally what white people would call an uncle. For this reason, Cherokee men had deeper friendships with their children. Cherokee fathers gave advice, not orders, and they did not punish.
Our divorce rate was low because, even when a marriage had become unhappy, Cherokee fathers did not wish to leave their children.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.