Richard Thornton | Aug 9, 2017 | 5
One of the justifications during the 1800s for deporting Native Americans west of the Mississippi or onto reservations, was that it would enable them to benefit from the “law and order” provided by European civilization. In fact, numerous European explorers such as René de Laudonniére, Juan Pardo, William Bartram and James Adair described established institutions for enforcing laws and maintaining the peace in Native American communities.
Probably the best primary reference for learning about traditional Muskogean judicial practices is The Road to Disappearance by Angie Debo. It is remarkable that Mrs. Debo was able to document so much information about the past. These traditions survived the tumultuous years of the Deerskin Wars, French & Indian War, American Revolution, Red Stick War, repeated relocations in the Southeast and finally, the Trail of Tears.
Eyewitness descriptions of Muskogean judicial practices can be found embedded within thousands of other tidbits about the past in John Swanton’s book, The Creek Indians and Their Neighbors. A word of caution should be applied to all of Swanton’s books, however. He was considered the leaded “expert” on the Southeastern Indians during the Twentieth Century, but most of his word translations are inaccurate. While becoming an expert from studying the archives, he obviously communicated little with living Southeastern Indians.
The observations of European explorers make it clear that Muskogean societies were more complex that those with South American-Caribbean traditions in the Southeastern Coastal Plain, or Woodland Culture traditions farther north. The coastal provinces tended to have power centralized in one leader or one family. Their political structure was like the anthropological concept of a “chiefdom.”
Woodland Culture societies such as the Shawnee, Southern Siouans, and later, the Cherokees, were highly egalitarian. Most decisions were made by consensus and their leaders functioned as moderators. Clan leaders were as influential as village leaders, The Muskogean town-building societies had complex representative governments and extensive rules that governed behavior within those towns. They represented a compromise between centralized chiefdoms and egalitarian clan-oriented societies.
What immediately is apparent when examining Muskogean judicial systems is the rationality of their laws. One can see a specific purpose for a law and the level of punishment given to violators of that law. They are not based on abstract concepts of morality, but rather survival of the community.
There was a pervasive duality in Muskogean society which also typified its judicial system. In political structures and judicial systems, it was manifested as a balance of power between sometimes conflicting interests. This was a feature of many indigenous societies in North America. The Founding Fathers of the United States incorporated the balance of power principle into the Constitution. The absolute rule of law was mitigated by the compassion of the clan mother.
Another feature of Muskogean law is the equality of men and women. Men and women were considered to be different, but equal. The subjugation of women, which originated in Middle Eastern societies, was considered barbaric by Muskogeans. English women could not vote, hold office or own property separate from their husband. A Muskogean woman voted on all matters, could hold any office other than in the military, and was sole owner of the house she lived in. That is a very different perspective on the genders.
Native American concepts of acceptable behavior were somewhat different than those of Europe. In some cases, what 18th century Europeans considered illegal and immoral were quite acceptable to Muskogeans, while some practices considered normal activities in Europe were capital offenses in Muskogean societies. Muskogean resistance to Christianity can be traced to the insistence of most Protestant and Roman Catholic missionaries that Middle Eastern – Medieval European traditions be inseparable to what was actually said in the Gospels.
In many Southeastern Native American societies there are cultural memories of a time of harmony and happiness. Villages without walls dotted the landscape of the Lower Southeast, because wars were unknown. However, there is evidence of some possible fortifications in the Appalachian and Ohio Valley regions. The “Golden Era” corresponds to the anthropological concept of the Early and Middle Woodland Periods. There was plenty of food from everyone, obtained from gardens, rivers and the forests There were ceremonial centers governed by priests where many peoples would come seasonally to worship, trade and socialize. People frequently traveled long distances to visit other peoples. The primary unit of both society and justice was the clan.
This “Golden Era” was followed by a time of chaos, strangers coming from afar to raid villages and chronic warfare between clans. It corresponds to the anthropological concept of the Late Woodland Period. The Swift Creek Culture ceremonial centers and villages that were accessible by sea going crafts from the ocean virtually disappeared. Villages with timber palisade walls appeared. Use of the bow and arrow became commonplace. Crops of foreign origin such as maize and beans were grown beside indigenous crops in garden plots.
Several town-building societies such as the Chitmaca, Natchez, Alabama and Creeks have traditions that Sun Lords appeared from the south and brought order to the chaos of the region. The Sun Lords established laws and customs that enabled people to live in large towns. They introduced sophisticated concepts of agriculture that enabled greater quantities of food to be cultivated and stored. Corn, beans and squash replaced most indigenous crops as the primary vegetative food sources.
The initial phase of the Sun Lord Era corresponds to the “Early Mississippian Period” of anthropologists. However, all of the traditions have the Sun Lords arriving from the south, i.e. Gulf of Mexico and Florida, not from the Mississippi River Basin.
The term “Sun Lord” survives as the title of the Second Chief of the Muscogee-Creek Nation, henehv. The original word Hene Ahau, was Itza Maya. The hene ahau of Mayan societies were the brothers and sisters of the reigning Hene Mako or Great Sun. They ruled satellite towns and district administrative centers as representatives of the Great Sun. Apparently, they also supervised major criminal and civil trials. The Tamatli Creeks still used the Maya title mako in the 1700s, but in most Muskogean societies the words had evolved to Mikko.
When Juan Pardo explored the Carolinas, he encountered judges traveling between villages of a province to hear criminal and civil cases. His chronicler, Juan de la Bandera wrote down their name as yeneha, but the word was obviously the Muskogean henehv. Apparently, by this time the concept of “sun lords” had evolved to be close relatives of the Great Sun, whose primary function was judicial. The closest relatives of the Great Sun probably were leaders of district administrative centers, called tula in Itsate Creek, tamaha in Choctaw and talwa in Mvskoke. All these Muskogean words are of Mesoamerican origin.
During the period between around 900 AD and 1800 AD, Muskogeans typically lived in compact, planned towns, often within palisaded walls. People had to get along within those walls. If viewed in that context, many of the laws and practices, which vary from European traditions, make perfect sense. Thus, the body of laws observed by the Creek Confederacy in the 1700s represented the combined wisdom of many centuries of agricultural peoples living in close proximity within towns.
Jurisdiction: Laws originally applied only within a regional political entity, dominated by a provincial capital that the Muskogeans called either an Oolachoba (Alabama,) E-t’ula-mako (Itsate,) O:la-meko (Koasati,) E-talwa-mikko (Mvskoke,) Tvmaha-Chito (Choctaw-Chickasaw) or E-tulwa-mikko (Kusa~Upper Creek.)
After the remnants of towns and provinces consolidated into confederations then later, tribes, acceptance of laws passed by “national” councils took preeminence. Acceptance of these laws was a condition for membership in the confederacy or tribe.
Laws: Laws were passed and maintained by provincial councils. Approval was by consensus. The Great Sun could not create laws. He or she was obligated to implement the laws passed by the councils. This legislative approach to law-making, contrasts sharply with the customs of the coastal societies, which originated in South America. The proclamations of paracusa’s or kings on the South Atlantic Coast were the laws.
The Creeks had an indigenous writing system in 1733, composed of red and black abstract characters (not pictures.) We do not know when in originated. It is quite possible that laws were written down on perishable materials like wood planks or animal skins. The traumatic period between 1540 and 1776 would have caused them to be lost. However, the fact that author Angie Debo was able to identify many of the old laws in the 1940s suggests that the ancestors of the Creeks had a means of passing a list of laws down to succeeding generations.
Levels of jurisprudence: The Muskogeans delineated between minor civil disputes, criminal acts and major civil disputes. Those civil disagreements or behaviors which might provoke internal war or clan feuds were assigned to the heneha’s or even the national council. The primary measure of the seriousness of a crime or dispute was its potential to impact the harmony of the province or community. This standard was undoubtedly a vestige of the chaotic times in the past when blood feuds between clans and villages ushered in a Dark Age.
Disputes between neighborhoods, households or individuals, not involving loss of life or substantial property, were handled by a local leader, a council of clan mothers, a village council or neighborhood council. Villages and the neighborhoods of large towns were administered by orata (Itsate) or olata (Mvskoke and Coastal Muskogeans.) The titles were mentioned by the memoir of René de Laundonniére and the chronicles of Juan Pardo. The title means “to make things happen” or “implement” in the Creek Languages.
Red and White towns: The Creek Confederacy and Seminole Alliance designated towns to be either red or white. Apparently, Itsate towns also had this tradition. Tullahoma, Tennessee means “Town Red” in Itsate Creek. Judicial punishment involving the shedding of blood or the death of a person could not be carried out in the vicinity of White Towns. Entire White Towns could be banished from the Creek Confederacy if a visitor was murdered by its soldiers. This in fact happened to an Apalachicola town that murdered English traders within the town limits.
Juries: Apparently, the provincial, town or village councils having jurisdiction in the case, functioned as a jury for criminal cases herd by the heneha or orata. Verdicts were by consensus just like contemporary juries in the United States. Most civil cases were probably decided by the heneha or orata.
Punishment: Capital punishment was rare, but carried out in red towns. Men were usually executed in the town plaza by having their head bashed in by a club. Women were usually strangled, hung from a pole in their neighborhood, or drowned in a river. The bodies of those who committed particularly heinous crimes were thrown into rivers or left out in the woods to be eaten by animals.
Relations between men and women
This aspect of human life is where there is the greatest difference between Middle Eastern – Medieval European traditions and the laws of the Muskogeans. The criminality and severity of an activity were measured against their potential to cause damage to the community as a whole. Sexuality, per se, was not associated with the extreme obsessions that we seen in Islam, medieval Christianity and some fundamentalist Christian organizations today. Conversely, sexual perversions were not even part of the Muskogean consciousness.
Unlike virtually all pre-industrial societies in the world, Creek young people dated and practiced birth control for as long as ten years before settling down to a marriage partner. Parents encouraged teenagers to have multiple, serial relationships before marriage. The assumption was that sowing wild oats as a youth would prevent wonder-lust as adults and parents.
Because of the delay in child-bearing, Creek women were able to have experiences and education that was impossible in other societies where girls were forced to marry at puberty. Prior to the influence of Protestant missionaries, Creek women also practiced several forms of birth control after marriage. They tended to have only one to three children – most of whom lived to adulthood.
Incest: Incest was defined as any sexual intimacy of a man and women within the same clan or extended family. A first time violation could be punished by execution, castration or banishment. This law was strictly enforced because experience through the centuries had taught that marriage between closely related partners resulted in deformities and/or physically inferior offspring.
Authors Note: I have noticed that my Creek ancestors in the late 1700s and 1800s traveled anywhere from 30 to 120 miles to marry other Creeks or Yuchi. This was at time when their white neighbors often married cousins or next door neighbors. Other Georgia and Alabama Creeks have told me similar stories. I think that the continued maintenance of the old prohibition against incest is the reason that diabetes, alcoholism and birth defects are almost unheard of in Eastern Creeks. On the other hand, Oklahoma Creeks in the past 170 years have tended to increasingly ignore intra-clan restrictions, plus also marry into other tribes with genetic intolerance for processed carbohydrates.
Engagement: The engagement of a man and woman was announced at Poskitv, the New Year’s festivities. At that point, these men and women were off-limits for other single adults. The man lived with the woman’s family for one year in a trial marriage, which could be ended at any time during that year.
Marriage: Formal marriage was by approval of the town council or village orata, and conducted by a Keeper (priest.) Marriage vows were renewed each year at Poskitv. The couple then walked back from the temple together carrying a bowl of coals to rekindle their hearth, to publicly announce their continued relationship. Failure to annually renew marriage vows converted the couple’s status to being unmarried singles, who were cohabitating. In this status, neither could be charged with adultery.
Adultery: Both men and women caught in the first act of adultery would normally have either their noses or ears cut off. The second offense was an automatic death penalty. If the consensus of the clan mothers was that there were mitigating circumstances, the adulterous couple would be sentenced to death then allowed to escape to a white town, where they could begin life anew.
Divorce: Divorce was easy to obtain, but rarely requested since Muskogeans married usually married for love when adults. Either the man or the woman could request a divorce from either the orata or the heneha. When granted, the man would have to immediately move out of her house. Divorcees had the same legal status as single young people. There were no societal prohibitions against intimacy between single adults or youth past puberty.
Sexual abuse: If an adult abused a child, execution would be immediately carried out by the clan of the child. This was not a crime that would probably even get to a formal hearing before a heneha. There is no mention of child abuse in the best known Creek archives. In fact, an adult, even a parent, could be punished for striking a child as a form of discipline.
Rape: Rape was defined as any sexual advance forced upon a single woman, if she did not have red circles painted on both of her cheeks. A woman wearing one circle on her face could be kissed or touched, but not forced to be intimate.
Punishments for rape or unwanted affection varied considerably with the circumstances. They ranged from death sentences to castrations to beatings to compensation by firewood, clothing, labor or food.
Arson, theft, bodily injury and murder
The general concept of these crimes went back to the clan days. Essentially, it was “an eye for an eye” and a “tooth for a tooth.” If someone stole a tool, he would have to replace it. If someone caused a house or barn to burn down, he would have to replace it. If someone intentionally killed another, the victim’s clan could either demand the perpetrator’s life, enslave him for the rest of his life, demand material compensation or forgive the murder.
Accidental homicide was theoretically the same as intentional murder, but the judges could be more lenient. For example, a person who committed accidental homicide might be sentenced to become a servant in the family of the victim for a certain period of time. This was particularly true if the victim was an adult hunter.
Witchcraft: Use of forbidden spells or poisons to make a person ill or cause them to die was automatically punished by the death sentence. Actual interpretations of what defined “witchcraft” varied considerably. The Okonee and Muskogee Creeks were staunchly monotheistic in belief, and thus very intolerant of pagan gods or any form of witchcraft. The Yuchi, Apalachee and Tamatli were sun god worshipers. The Choctaws and Chickasaws were animists.
Real Estate Laws
All domestic and agricultural real estate was owned by women. Property boundaries were determined by talliya (architect-surveyors) All boundary disputes were resolved by the talliya in the presence of the orata or town council. Domestic real estate was assigned to a woman at the time of marriage and continued to be her property until her death.
Agricultural lands were owned communally by the women and were assigned to households annually. The town council determined the size of each household’s tracts. They were staked out by the talliya each spring. As late as 1773, William Bartram observed that a Creek talliya had superior surveying skills to his British counterpart.
All temples and shrines were owned by the nobility, who were descended from the Sun Lords. Priests, known as Keepers had responsibility of building, maintaining and demolishing sacred buildings. No sacred building could be declared “dead” without permission of a council having jurisdiction.
Communal buildings such as arsenals, warehouses, meeting buildings and workshops were owned communally by the men of a town. Their location was determined by the town council. They were designed by the talliya.
Real estate transactions: No agricultural or hunting land could be traded or given to another owner without permission of the council of clan mothers. Violation of this law was punishable by death. After the Muskogean tribes were pressured into being male dominated societies in the 1800s, such laws were modified to make the national councils the only parties who could cede land to the United States.
Enforcement of laws and police protection
The lead warrior of a village or neighborhood (taskinugi in Mvskoke) was responsible for gathering a posse’ of warriors within a clan. The posse’ then apprehended and arrested an accused criminal. The accused was typically staked to a pole inside a house or tide to a rack outside prior to trial. The trial occurred as soon as a heneha or orata was available. There was no concept of long term imprisonment and no record of “jails” being constructed.
Guardians: Large towns had special units of powerful warriors, who functioned as they permanent guards and police force of the town. Known as vhecicv (awhechichaw) or vketecv (awketechaw) they stayed in a town, when the majority of men when out to hunt or make war. The guardians were typically the best archers in the town. They kept watch from towers erected on the palisades and also from the tops of large mounds. The guardians also functioned as town police within the walls, but usually did not desert their posts to chase accused criminals into the forests.
Y’all stay out of trouble now!
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Richard Thornton is a professional architect, city planner, author and museum exhibit designer-builder. He is today considered one of the nation’s leading experts on the Southeastern Indians. However, that was not always the case. While at Georgia Tech Richard was the first winner of the Barrett Fellowship, which enabled him to study Mesoamerican architecture and culture in Mexico under the auspices of the Institutio Nacional de Antropoligia e Historia. Dr. Roman Piňa-Chan, the famous archaeologist and director of the Museo Nacional de Antropologia, was his fellowship coordinator. For decades afterward, he lectured at universities and professional societies around the Southeast on Mesoamerican architecture, while knowing very little about his own Creek heritage. Then he was hired to carry out projects for the Muscogee-Creek Nation in Oklahoma. The rest is history.Richard is the Tribal Historic Preservation Officer for the KVWETV (Coweta) Creek Tribe and a member of the Perdido Bay Creek Tribe. In 2009 he was the architect for Oklahoma’s Trail of Tears Memorial at Council Oak Park in Tulsa. He is the president of the Apalache Foundation, which is sponsoring research into the advanced indigenous societies of the Lower Southeast.
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