Legislating women's sexuality: Cherokee marriage laws in the nineteenth century

Journal of Social History, Winter, 2004 by Fay Yarbrough

Introduction

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.