Abstract:
In this work I challenge the view held by some scholars that the written laws published
by the Cherokee Nation on September 11, 1808 attempted to undermine matrilineal clan
management of marriage practices. I describe how Cherokee leaders, both women and
men, adopted aspects of the legal template from the United States juridical system and
designed laws to accommodate existing marital practices, reflecting the goal to protect,
defend, and ensure the political, economic, and social rights of women. Although there
was now to be written law consistent with legal systems in Europe and the United States,
there was already extensive Cherokee “law” (albeit unwritten) that regulated choice of
spouse, defined the legality of the marriage, designated membership, and directed
inheritance through the woman. The matrilineal kinship structure effectively resisted the
persistent pressures exerted upon it by the government of the United States to capitulate
to a patriarchal legal system that privileged men over women as heads of household,
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property owners, and guardians of children. The process of developing written laws that
accurately reflected Cherokee values and beliefs involved the complementary governance
defined by the authority and power exercised by both women and men. My
interpretation of the events recorded by Euro-American and American men of the
colonial period, including often quite biased accounts and misinterpretations of Cherokee
life, ultimately provided the evidence that matrilineal clan management of marriage and
inheritance was not evanescent.
