The Cherokee system was based more on responsibility
for wrongful actions than on the notion of "justice" in the western sense of the word. Rather than justice, the Cherokee system
was ideal for keeping balance and harmony in the spiritual and social worlds.![](http://build.tripod.lycos.com/servlet/Image3.gif)
One day, some Cherokee children were playing outside,
when a rattlesnake crawled out of the grass. They screamed and their mother ran outside. Without thinking, she took a stick
and killed it.
Her husband was hunting in the mountains. As he was
returning home that night, he heard a strange wailing sound. Looking around, he found himself in the midst of a gathering
of rattlesnakes, whose mouths were open and crying.
"What is the matter," the man asked the snakes. The
rattlesnakes responded, "Your wife killed our chief, the Yellow Rattlesnake today. We are preparing to send the Black Rattlesnake
to take revenge."
The husband immediately accepted their claim and took
responsibility for the crime. The rattlesnakes said, "If you speak the truth, you must be ready to make satisfaction." The
price they demanded was the life of his wife in sacrifice for that of their chief. Not knowing what else might occur, the
man consented.
The rattlesnakes told the man that the Black Rattlesnake
would follow him home and coil up outside his door. He was to ask his wife to bring him a fresh drink of water from the spring.
That was all.
When the man reached home, it was very dark. His wife
had supper waiting for him.
"Please bring me some water," he asked her. She brought
him a gourd from the jar, but he refused it.
"No," he said. "I would like some fresh water from
the spring."
His wife took a bowl and stepped outside to get him
some fresh water. The man immediately heard her cry. He went outside and found the Black Rattlesnake had bitten her and she
was already dying. He stayed with her until she was dead.
The Black Rattlesnake then crawled out of the grass.
"My tribe is now satisfied," he told the husband. He then taught the man a prayer song. The Black Rattlesnake told him, "When
you meet any of us hereafter, sing this song and we will not hurt you. If by accident one of us should bite you, sing this
song over the person and he will recover." And the Cherokee have kept this song to this day.
We had a strict liability law for any killing. The
death created an imbalance which required revenge to restore harmony. The clan of the perpetrator of the homicide was to admit
and accept responsibility for the wrongful killing. Then the clan was expected to pay the cost. Blood called for blood. Following
this system, the husband sacrificed his wife's life to restore harmony. He did so because that was the law. In following the
law, harmony was restored between the rattlesnakes and the humans. To reward the man, the snakes gave the humans a song to
protect them and to remind the snakes of their duty to the humans, as well.
The Cherokee religion drove the sense of balance, which
created a moral system for the human to follow. What drove the revenge system was the sense of balance. When a delict was
committed, it created imbalance and tension on the jurisdictional unit. The acceptance of responsibility and paying of the
cost restored that balance. Once the balance was restored, the relationship between the jurisdictional units or clans continued
as if nothing happened. There were to be no hard feelings expressed between family members of the victim or killer. Balance
had been restored and any friction was to end with the restoration of balance.
The creation of imbalance was tied to the Cherokee
religion. It was believed that the murdered "soul" or ghost would be forced to wander the earth, unable to go to the next
world. This created the imbalance. The acceptance of responsibility and the death of the killer or one of his clansmen restored
balance by freeing the innocent ghost, allowing him to go to the next world. That is why it did not matter who paid the cost
for the delict of the wrongful killing. Any death from the responsible clan would suffice to free the innocent man's ghost
from this world. An enemy scalp might suffice as well.
In international law, the Cherokee system worked much
the same way. If an international delict occurred, then anyone from the that jurisdictional unit, in this case, the foreign
nation, would suffice to pay the cost. Taking responsibility for the international delict and paying the cost were exercised
in the face of swift vengeance. There was no time for contrition. Thus, interloping settlers took their chances by moving
onto Cherokee territory, because they might be called to pay the cost for someone else's actions or the actions of their nation.
Cherokees saw it as their responsibility, whether or not the settlers saw it that way.