Cherokee Nation judicial system

Reclaiming Justice: The Resurgence of the Cherokee Nation’s Judicial System

TAHLEQUAH, OKLAHOMA – In the quiet hum of a Tahlequah courtroom, where the Cherokee language sometimes echoes alongside English, a profound transformation is underway. This isn’t just about rendering verdicts or interpreting statutes; it’s about the reclamation of sovereignty, the enduring spirit of a nation, and the meticulous rebuilding of a justice system that was once systematically dismantled.

For generations, the Cherokee Nation, like many Indigenous tribes across the United States, faced the erosion of its inherent right to self-governance. Its judicial system, robust and sophisticated in the 19th century, was forcibly suppressed by federal policies aimed at assimilation and land dispossession. Yet, through resilience and legal persistence, that system is not only revived but thriving, increasingly recognized as a vital component of justice in Oklahoma and beyond.

The catalyst for this modern resurgence, undeniably, was the U.S. Supreme Court’s landmark 2020 ruling in McGirt v. Oklahoma. In a 5-4 decision, the Court affirmed that the Muscogee (Creek) Nation’s reservation, covering much of eastern Oklahoma, was never disestablished by Congress. Subsequent rulings, including Oklahoma v. Castro-Huerta (2022), extended this principle to the Cherokee Nation and other Five Tribes, effectively confirming that much of eastern Oklahoma remains Indian Country for purposes of federal criminal law.

This legal earthquake had immediate and far-reaching consequences. It meant that crimes committed by or against Native Americans within these ancestral boundaries, which had long been prosecuted by the State of Oklahoma, now fell under federal or tribal jurisdiction. For the Cherokee Nation, this was not a burden but an opportunity – a powerful vindication of its sovereignty and a mandate to expand its judicial capacity at an unprecedented pace.

“McGirt was a monumental decision, not because it created new law, but because it affirmed what we have always known to be true: our reservation lands were never disestablished,” explains Principal Chief Chuck Hoskin Jr. “It placed an incredible responsibility on our shoulders to meet the demands of justice, and our judicial branch has risen to that challenge with remarkable speed and dedication.”

A System Forged in History, Built for the Future

The Cherokee Nation’s judicial history is a testament to its advanced governance. Long before Oklahoma statehood, the Nation operated a highly organized system with district courts, a supreme court, and even a written constitution. Laws were codified, juries empaneled, and justice administered, often with a focus on rehabilitation and community harmony rather than mere punishment. This sophisticated framework was a stark contrast to the prevailing stereotypes of Indigenous societies at the time.

However, the late 19th and early 20th centuries brought a brutal period of federal assimilation policies, including the Dawes Act and the Curtis Act, which systematically dismantled tribal governments and their institutions, including courts, to pave the way for Oklahoma statehood and the allotment of tribal lands. For decades, tribal justice was largely relegated to internal disputes, often informal, with major crimes handled by federal or state authorities.

The modern Cherokee Nation judicial system began its slow, deliberate reconstruction in the latter half of the 20th century. Today, it stands as a fully operational, independent branch of government, comprised of a Supreme Court, a District Court, and a growing array of specialized courts and programs.

The Cherokee Nation Supreme Court serves as the highest appellate body, interpreting the Cherokee Nation Constitution and laws, and ensuring consistency in judicial decisions. Its justices, often with extensive backgrounds in state and federal law, bring a deep understanding of both Anglo-American legal principles and Cherokee cultural values.

The Cherokee Nation District Court is the trial court of general jurisdiction. Here, cases ranging from civil disputes, family matters (including child welfare and adoptions), to criminal offenses are heard. The court handles a significant volume of cases, which has swelled dramatically since McGirt, requiring the expansion of judgeships and support staff.

Innovation and Cultural Integration: Beyond Traditional Courts

What truly distinguishes the Cherokee Nation’s judicial system is its innovative integration of cultural values and restorative justice principles. While adhering to due process and modern legal standards, the Nation has pioneered programs that reflect its heritage of community-focused resolution.

One shining example is the Peacemaking Program. Rooted in ancient Cherokee traditions, Peacemaking offers an alternative to adversarial litigation. Instead of focusing solely on guilt or innocence, Peacemaking brings together all parties involved in a dispute – victims, offenders, families, and community members – to discuss the harm caused and collaboratively develop solutions that promote healing and reconciliation. This process is facilitated by trained Peacemakers, respected community elders or leaders, who guide participants toward mutually agreeable resolutions.

“Peacemaking is not about winners and losers; it’s about restoring balance,” explains a Cherokee Nation District Court judge, who often refers cases to the program. “It acknowledges that when a wrong occurs, it impacts the entire community, and the community has a role in healing that wrong. It’s incredibly powerful for victims and offenders alike.”

Beyond Peacemaking, the Cherokee Nation has invested heavily in specialized courts, mirroring national trends but infusing them with a distinctly Cherokee approach:

• Drug Court: This program provides an intensive, supervised alternative to incarceration for individuals struggling with substance abuse. It emphasizes treatment, accountability, and regular court appearances, with a strong focus on rehabilitation and reducing recidivism. The approach integrates cultural elements, such as traditional healing practices, where appropriate.
• Wellness Court: Similar to Drug Court, but often broader in scope, addressing mental health issues and other underlying factors that contribute to criminal behavior.
• Family Court: Handles sensitive matters like child custody, guardianship, and adoptions, prioritizing the best interests of Cherokee children and often working closely with the Nation’s Indian Child Welfare Act (ICWA) department.

These specialized courts reflect a philosophy that understands that justice isn’t just about punishment, but about addressing the root causes of crime and supporting individuals in becoming productive members of their community.

Challenges and the Path Forward

Despite its remarkable progress, the Cherokee Nation’s judicial system faces significant challenges. The sudden increase in caseloads post-McGirt strained existing resources, requiring rapid expansion of personnel, infrastructure, and training.

“The scale of the increase was unprecedented,” says Todd Hembree, former Attorney General for the Cherokee Nation and a key figure in its legal battles. “We had to hire more prosecutors, more public defenders, more judges, expand our marshals service, and even consider expanding our detention facilities. All of this requires substantial funding and resources, often beyond what the federal government adequately provides for tribal justice systems.”

Another ongoing challenge is public education. While tribal citizens are generally aware of the Nation’s legal system, many non-Native residents within the Cherokee Nation’s reservation boundaries are less familiar with tribal jurisdiction and how it impacts them. The Nation actively engages in outreach to clarify jurisdictional complexities and foster cooperation with state and federal law enforcement agencies.

Collaboration is, in fact, crucial. The Cherokee Nation has established working relationships with district attorneys, sheriffs’ departments, and federal agencies to ensure seamless coordination on cases that cross jurisdictional lines. These agreements, though sometimes challenging to negotiate, are vital for public safety and efficient justice administration.

A Beacon of Sovereignty

The Cherokee Nation’s judicial system stands as a powerful testament to the enduring sovereignty of Indigenous nations. It is a living, evolving entity that balances modern legal principles with ancient traditions, serving as a beacon for other tribes and a model for what a truly just and culturally responsive legal system can be.

From its humble beginnings after forced suppression, it has grown into a sophisticated, respected institution that handles complex legal issues, protects its citizens, and strengthens the fabric of its community. The journey is far from over, but with each case adjudicated, each dispute resolved through Peacemaking, and each life transformed by its specialized courts, the Cherokee Nation reaffirms its right to self-determination and its profound commitment to justice for all.

As Chief Hoskin often reiterates, “Our judicial system is a pillar of our sovereignty. It’s not just about asserting our rights; it’s about fulfilling our responsibilities to our people and ensuring a just society within our lands.” And in the courtrooms of Tahlequah, that promise is being delivered, one case at a time.