by Misty Peñuelas
In reality, Ned Christie (December 14, 1852-November 3, 1892), allegedly the “most notorious outlaw that ever roamed the wilds of the Cherokee Nation,” actually only shot three people. Although, the son of a respected member of the Cherokee National Council, and himself elected a member in 1885, US authorities sought him for questioning in the murder of Deputy US Marshal, Dan Maples, on May 4, 1887. When Christie wisely refused numerous summons to the US Court of the even more notorious, “Hangin’ Judge,” Isaac Parker in Fort Smith, Arkansas, US authorities presumed his guilt, while his silence left ample space for rumor and innuendo in the American press. By 1892, Christie’s successful evasion of US authorities, embellished and exaggerated in the press, was an irritating reminder of the Cherokees’ territorial sovereignty in general and an embarrassment to Parker in particular, who, for over four years, had failed to mete out justice to “one of the territory’s most savage outlaws,” and bring an end to this alleged “terror of Indian Territory.” So it was that on the morning of November 3, 1892, a posse of US Marshals, financed once again by Fort Smith authorities, surrounded the homestead of Ned Christie, and, having set his home on fire, gunned him down as he fled the burning structure.
At the interstices between “Cherokee Outlaw” and “Cherokee Hero,” the life and times of Ned Christie can be seen as a manifestation, a concrete example of the principles that essentially defined Cherokee sovereignty throughout the “Long Nineteenth Century.” In her 2018 book, Ned Christie: The Creation of an Outlaw and Cherokee Hero, historian Devon A. Mihesuah has sifted through the salacious, sensationalized rhetoric and blatant falsehoods perpetrated in the American press at the time of Maples’ murder and shown how these invented stories uncritically became a part of an accepted historical narrative. Stripped of myth and legend, Christie’s “crimes” were either victimless crimes (malum prohibitum rather than malum in re), or occurred in defense of his family or property. Thus, although Mihesuah herself does not use the words, looking at Christie’s actions through the lens of absolute private property rights reveals those actions to be entirely consistent with the principles of natural law.
As Wanjiru Njoya summarized them in her recently published book, co-authored with David Gordon, Redressing Historical Injustice: Self-Ownership, Property Rights and Economic Equality, the “Lockean ideals” that constitute the essential components of private property include “the concept of self-ownership, just acquisition of property through homesteading,” the right to exclude others, and “the right to resist the compulsory seizure of one’s property.”
Despite the ever-growing list of murders attributed to Christie in the wake of the Maples debacle, Christie was involved in only three incidents of gun violence prior to the raids of US Marshals on his home, which began in earnest in the fall of 1889. In 1871, the nineteen-year-old Christie shot a man for physically harassing a woman, Nannie Dick, at a dance. Nannie and Ned married the following year, making the non-fatal shooting an instance of self-defense and defense of family. In 1884, Christie was accused of shooting and killing one William Palone, who, enraged that Christie would not get drunk with him, called him a son-of-a-bitch. A Cherokee jury agreed that it was a justifiable defense of his mother, whose honor was impugned in the slight, and acquitted Christie. Later, in 1888, Christie stood trial for the murder of Bear Grimmet in a dispute over stolen property. However, with no evidence and no witnesses, a Cherokee jury fully exonerated Christie.
Yet it was not simply that Christie manifested self-ownership in exercising his natural law right to self-defense, or as John Locke put it, his “executive power” to punish violations of natural law, that aggrieved US authorities.1 Even more troubling was Christie’s economic self-sufficiency. When Christie’s family arrived in the Indian Territory after removal from their Eastern homelands, they immediately “homesteaded” in the area of Wauhillau, building a log cabin, planting gardens, and constructing live stock pens. Prior to the US Civil War, this area of what is today northeastern Oklahoma was well-timbered, with plenteous sources of fresh water, produced numerous edible plants, and teemed with wild-life. Besides numerous seasonal foods, such as blackberries, raspberries, strawberries, grapes, and plums, the family had access to abundant fish from the Illinois River. Abundant sources of meat included bear, deer, raccoons, opossums, beavers, ducks, geese, quail, wild pigeons, squirrels, and rabbits. The Christie’s furthermore kept a “milch cow” and raised chickens. They “raised corn, beans, potatoes, and pumpkins and traded with neighbors for peanuts, sweet potatoes, watermelons, black-eyed peas, and honey from their apiaries.” Although the US Civil war visited destruction upon the Cherokee Nation as troops burned barns, houses and cribs, carried off furniture and drove off cattle, Ned Christie and his family rebuilt their home, pens, and gardens, cultivating beans, corn, squashes, and potatoes, “as he had learned from his parents,” on the same land that they originally “homesteaded.” In short, because Ned Christie exercised and defended his rights to private property under natural law, that is, by appropriation through labor and inheritance, along with the executive power to punish, he was self-sufficient and fully capable of resisting the coercive authority of a chagrined US for over four years–and did so openly, remaining on his homestead until he died defending it in 1892.
Even as John Locke penned his theory of property rights derived from natural law and the state of nature, critics quipped, “‘Where are or ever were there any men in such a state of nature?’” In fact, as a Commissioner on the Board of Trade and Plantations, Locke could have very well based his “theory” of the state of nature on the Indians of the Southeast, in particular on the Cherokees, whose first sustained contacts with Europeans, began just before Locke wrote his Second Treatise, published in 1690. Whether Locke’s theory was arrived at deductively or based on the information of informants, other well-placed and sympathetic observers also documented the actual existence of men living under “such a state of nature,” namely, the various towns grouped under the Cherokee Tribe.
In 1811, the Cherokees consciously and publicly signed a “social contract” when the National Council banned clan vengeance, or the executive power to punish, and established control over the newly acquired (through a continuing series of land cessions) “national funds.” It is universally assumed that the ensuing Cherokee Constitution of 1827 (actually their third written constitution) created a liberal government modeled after the US, with bicameral legislature, executive branch, and multi-jurisdictional criminal and civil judiciary. In reality, the property laws of the Cherokee Nation actually created an economic order entirely antithetical to the US system of coercive government. The life and times of Ned Christie are but a small aperture into, a concrete example of, the Cherokee belief in and practice of natural law, which they consistently carried forward as a nominal nation state, even into the twentieth century. In short, the Cherokee “government” used the institutional framework of a liberal state to create a de facto state of nature, governed by natural law, within its territorial boundaries.
Ultimately, just as natural law and the existence of a de facto state of nature guaranteed the self-ownership and property rights of Ned Christie, the state of nature, as enshrined in Cherokee statutory law, likewise preserved Cherokee territorial sovereignty. Defined in the words of an 1865 Agreement concluded (but never ratified) at Fort Smith, Arkansas, sovereignty means the ability of any government to maintain its “supremacy and authority within its limits.” In short, as long as the Cherokees maintained private property rights in accordance with natural law, and a de facto state of nature “within its limits,” over and against the US system of individual ownership in fee simple, it was absolutely sovereign–an embarrassing imperium in imperio, nestled subversively in the heart of a continental, Progressive, “new order of things.” Because Cherokee law was rooted in the “Lockean ideals” of self-ownership and the acquisition of private property, the Cherokee Nation could not have been grafted into the US federalist system as a genuinely sovereign state. Ned Christie exemplified the “art of not being governed.” His economic self-sufficiency and power to punish meant that he did not need the government to defend his property. In short, Christie gave the lie to the social contract. Therefore, from the perspective of the US State, it was not only Christie that had to be eliminated, but indeed, the entire edifice of natural law at the heart of Cherokee territorial sovereignty that had to be destroyed.
Clearly, no eighteenth-century Cherokee would have described his condition as a “state of nature,” nor characterized Cherokee Law as “natural law.” Nevertheless, if “ever were there any men in such a state of nature,” it was the various Cherokee peoples of the eighteenth century. While John Locke never traveled to North America, a South Carolina trader named James Adair lived among the Cherokee between 1736 and 1743. Adair’s observations, published in 1775 under the title History of the American Indians, explicitly characterized the Cherokee as a natural law society based on the right to self ownership and the executive power to punish, or as it is universally called in the literature, “clan vengeance.” Adair considered the fundamental principles of Cherokee law–self-ownership and executive power to punish–to be expressions of “the law of nature” that “appoints no frail mortal to be a King, or ruler, over his Brethren…and forbids the taking away at pleasure, the property of any who obey the good laws of their country.” The Cherokee language had “no words to express despotic power, arbitrary kings, oppressed, or obedient subjects.” In short, each individual Cherokee exercised absolute and inviolable self-ownership, living “at his own choice, not being forced in the least degree to do anything contrary to his own inclination.”
The fundamental principle of self-ownership, and its implied corollary, the principle of non-aggression, were evident in the Cherokees’ conduct of their civil and military affairs. Adair was not alone in observing that Cherokee chiefs and warriors wielded no coercive power, but led by persuasion alone. In 1761, ambassador/hostage Lieutenant Henry Timberlake observed that “Their government, if I may call it government, has neither laws or power to support it…the chiefs being chose according to their merit in war or policy at home…lead the warriors that chuse to go, for there is no laws or compulsion on those that refuse to follow.” In 1768, natural philosopher/anthropologist John Haywood’s account was even more explicit about how the principle of self ownership and non-coercion shaped the conduct of civil affairs. Haywood noted that a Cherokee chief had “neither guards, power, nor revenue,” and so without the voluntary support of the warriors, the Chief was no more than “a mere cipher.” So absolute was Cherokee respect for individual self ownership that, as a chagrined Haywood put it, “a few dissenting voices…often destroy[ed] the most salutary measures” at their public councils.” If even one man or woman objected to a proposal, the proposal was abandoned.
Thus, in the mid eighteenth century, individual “liberty”–absolute, inviolable self-ownership–was, Haywood wrote, the Cherokees’ “darling passion.” To it, he said:
they sacrifice everything and in the most unburdened liberty they indulge themselves through life. They are rarely chided even in infancy, and never chastised with blows. Reason…will guide their children, when they are come to the use of it….To chastise them would…debase the mind and blunt the sense of honor, by the habit of a slavish motive to action…[likewise], in manhood, command, subordination, dependence were equally unknown: and by those [outsiders] who wish to possess their confidence, persuasion is [to be] avoided, lest their influence should seem a sort of violence offered to the will.
Such a striking condition of absolute individual liberty, particularly in childhood, is well-nigh impossible to imagine in today’s Progressive, statist, Huxlean, “brave new world.” Yet, Murray Rothbard not only imagined it, he systematically outlined the practical logistics and ethical necessity of what he called the “libertarian” society. Rothbard’s modern articulation of the libertarian society, based entirely on the natural law principles of self-ownership and non-aggression, and the private property rights that flow from them, is, in almost every respect, a mirror image of the Cherokees’ natural law society. Even today, the principle of self-ownership is not simply a matter of “body ownership rhetoric.” Echoing the eighteenth-century Cherokees, twenty-first century libertarian, Wanjiru Njoya observed that self-ownership further implies “free will and freedom of choice in relation to economic activity, including freedom to choose how to direct one’s own labor and resources and to exercise control of the fruits of one’s labor.”
Without any extraordinary claims about the universality or normative value of natural law, nor assumptions about economic equilibrium, it is clear that Cherokee society, perhaps unique in the annals of history, was as an actual historical example of “any men in such a state of nature.” Whatever one may think of natural law today, these eighteenth century accounts are compelling evidence that Cherokee society was shaped and governed by the principles of natural law. The nominal social contract that the Cherokees publicly declared in 1811 formally abolished the primary pillar of natural law, namely, the executive power to punish, and its implied corollary, the principle of non-aggression. However, when viewed against the historical back drop of radical self-ownership and non-coercion that long governed Cherokee society, it is clear that, throughout the long nineteenth century, the property rights enshrined in Cherokee statutory law were deeply rooted in the other pillar of natural law, self-ownership. Thus, despite the appearance of a coercive liberal government, Cherokee property laws nevertheless successfully maintained a state of nature within the territorial boundaries of the Nation, which remained, therefore, irreconcilable with the processes of US state formation.
When, in 1820, the Cherokee National Council enacted a poll tax of fifty cents per annum on every male head of household under the age of sixty, they quickly realized that they were no more able to compel “free men” to pay “fines” than were their recent forebears of the 1760s. Indeed, individual taxation was a dead letter by 1825, when the poll tax was finally repealed altogether. In its 1827 Constitution, although the Cherokee government again asserted its sovereign authority to levy and collect taxes, they never again seriously attempted to enforce a per capita tax on individual Cherokee citizens.
It is true that the Cherokee National Council ran a brisk business selling property rights and then taxing those rights for revenue, including granting monopoly rights to work salines and operate ferries, grazing and drover’s taxes, and requiring licenses for foreign merchants and laborers, to mention but a few. However, the utter failure of the Cherokees to enforce individual taxation, a sine que non of the liberal state, painfully underscored one of the essential differences between the libertarian, natural law society of the Cherokees and the nominally “liberal” US. Although classical liberals endorsed a “political individualism” which asserted that the “sole legitimate function of the state is the protection of individual rights,” even the most classical of liberals would concede that it was sometimes justified to violate the property rights of individuals, indeed, to “undermine the rule of law,” which itself was “meant safeguard persons and property.” Like their modern day libertarian counterparts, Cherokees were never willing to jettison their “darling passion,” and concede the natural law principle, their 1811 social contract notwithstanding, that “formal law ought not to violate self-ownership and property rights.” Coercive taxation was a primary goal of the US as it sought to take control of, and integrate into the US “federalist” system, the sovereign territory of the Cherokee. Yet the natural law principles at the heart of Cherokee society were irreconcilable with even the most benign formulations of federalism, meaning that Cherokees could never enter that system with any genuine sovereignty, since any sort of taxation would violate the natural rights of self-ownership.2
In addition to absolute self-ownership and indeed, as an extension of it, the “Lockean ideals” of “just acquisition…through homesteading” and the right of exclusion were evident in the Cherokees’ Public Domain laws. Indeed, they defined “ownership” in terms that would be familiar to a libertarian today. On June 25, 1825, in Article One of their second written Constitution, the Cherokee National Council declared that:
The lands within the sovereign limits of the Cherokee Nation…are and shall be, the common property of the Nation. The improvements made thereon and in the possession of citizens of the Nation, are the exclusive and indefeasible property of the citizens respectively who made, or may rightfully be in possession of them.
The reference to “common property” should not be misconstrued as implying that the Cherokee government owned or controlled those lands. Under this law, the so-called public domain, was in reality still a de facto state of nature. First, it is important to recognize that the “improvements” clause represents an uninterrupted continuation of the eighteenth-century, “pre-social contract,” Cherokee private property practices. Next, there is the striking parallel with the Lockean state of nature, wherein “exclusive and indefeasible” property rights were acquired by improvement through labor. Also consistent with natural law, “title” to land was rooted in possession, not ownership. To demonstrate bona fide possession, one must show both the facts of possession, that is, a sufficient degree of physical custody and control, and the intention to possess, that is, the “intention to exercise such control on one’s own behalf and for one’s own benefit.“
In 1839, the Cherokees expanded the public domain law to prohibit non-citizens from purchasing improvements and to strengthen the possession clause, declaring that any improvements left abandoned for two years would “revert to the Nation as common property; and any person or persons whatever, citizens of this Nation, may take possession of any such improvements so left, which shall thenceforward be considered their lawful property.” Again, this is not ownership, nor communal property. Even as late as 1870, Cherokee legislators continued to enforce and strengthen natural law property rights in an act authorizing the National Council to appropriate land in or near any proposed railroad towns, which would then be laid out in town lots and sold to the highest bidder at public auction. The law again reinforced natural law property right principles, stating that the “owner” acquired “the same rights and none other than those of use and occupancy.” Furthermore, to secure his title to occupancy and use, the owner was required to make at least fifty dollars in improvements within six months (intent to possess) and be in “actual possession thereof” (the facts of possession). These provisions are remarkably consistent with the natural law principle, as stated by Rothbard, that “there can be no just title to land that has not been improved.” Thus, since any Cherokee citizen could appropriate land for his own use or take possession of abandoned improvements, the “sovereign territory” of the Cherokees remained, by design, in a de facto state of nature.
So it was that, despite the nominally coercive, liberal framework of the Cherokees’ national government, individual Cherokees were still essentially able to exercise self-ownership under natural law even into the twentieth century. So it was that Ned Christie, and other alleged outlaws, were able to avoid and evade the authority of the US. Under the conditions created by the Cherokee legislature in the nineteenth century, an individual Cherokee could, if he so chose, live completely apart from the government and market economy of the Cherokee Nation. Others chose the opposite, to live entirely within the money economy. As a paid member of the National Council and legendary metal smith, Ned Christie had a foot in both worlds, yet, as noted above, his continued self-sufficiency, guaranteed by sovereign laws of the Cherokee Nation, rankled US authorities. The memory of his death and the natural law property rights he died defending cast a long shadow over Oklahoma statehood in 1907.
On November 17, 1907, during the inauguration of the first Oklahoma, Charles N Haskell, there was held a mock, and mocking, wedding ceremony on the steps of the Library in Guthrie, Oklahoma. Miss Indian Territory was “merged forever” into the identity of “Mr. Oklahoma,” despite the “unhappy circumstances of her youth.” Although the “shadow of sorrow” cast over a “face by nature only intended to give back only warm smiles of God’s pure Sunshine,” might be uncharitably taken as an oblique reference to the shadowy past of Mrs. Leo Bennett (aka, Anna Trainor Bennett), who played Miss Indian Territory in the mock ceremony and whose brother, Bub Trainor, was a notorious, petty criminal in the Cherokee in the 1880s and 1890s, and prime suspect in the murder of Dan Maples, the very incident for which Ned Christie was executed by US Marshals in 1892. Despite the emasculation of “nature” as a manifestation of nothing more than the “warm smiles of God’s pure Sunshine,” it is evident that there was some unarticulated fear that “this beauteous maiden,” described as “the last descendant of the proudest race that ever trod foot on American soil,” might reignite the Cherokees “darling passion,” whose flame had barely been extinguished before the imposition of her shotgun wedding.
In his 1900 speech to the annual Lake Mohonk Convention, Senator Henry L. Dawes, architect of both the general Allotment Act of 1887 and Cherokee Allotment in 1902, exaggerated the alleged plight of US immigrants in the Cherokee Nation to launch an oblique attack against the foundation of the nation’s sovereignty–their natural law property rights. Arguing the absolute and immediate allotment of the Cherokees sovereign territory, Dawes claimed that some 300,000 “white non-citizens,” had “taken up residence” in the Nation, most illegally, and whom the Cherokees called “intruders.” Clutching his pearls, Dawes explained to the “Friends of the Indian” that these beleaguered “white non-citizens”
…had no title to a foot of land, had no voice in the government under which they lived, and no protection from its officials or laws, were excluded from its courts and their children from its schools. They built towns on land to which they had no other title than a permit of no legal value, for which they paid tribute to some irresponsible holder, and governed themselves as best they could.
Here, Dawes demonized the natural law property rights that guaranteed absolute self-ownership and ultimately Cherokee sovereignty. First, Dawes ignored the right to exclusion. The Cherokee government was under no obligation to give “non-citizens” a “voice” in their National government. Yet even under those conditions, because Cherokee property rights were rooted in natural law, there would be no need for “protection from its officials or laws.” More directly, this outburst was a direct reference to the Cherokee Public Domain laws, cited above, that specifically recognized that legitimate title was rooted in possession, not a piece of paper. Yet, despite his syrupy effort to justify allotment as a desperate appeal to protect the property rights of US Citizens, in reality, the Cherokee allotment was a Procrustean, Progressive onslaught against the property rights of individual Cherokees that utterly destroyed their de facto state of nature by forcing all Cherokee land to be equally divided among all bona fide Cherokee Citizens, and held in fee simple.
Henceforth, individual Cherokees and their land, whether they so chose or not, would now be subject to the jurisdiction of the disciplinary state—legible, taxable, and easily trained. There would no longer be resort to the appropriation of property through labor, but now there would be “ownership,” signified by a piece of paper, regardless of use or possession. There would be no more Ned Christies, self-sufficient enough to defend their own property. Now all individuals would be dependent on the state to defend their property rights. Thus, castrated, the Cherokees could be counted, classified, compared, and easily integrated into the fiscal-monetary structures of the US economic system. At last, the US had finally destroyed the last imperium in imperio standing in the way of its “manifest destiny.” Now, the newly legible Cherokees could be incorporated into the “federalist” system of the US, completely absorbed into the “identity” of Mr. Oklahoma.
In 1906, Pleasant Porter, Principle Chief of the Creek Nation, testified before Congress on the changes allotment had visited upon his people:
In those days they always raised enough to eat, and that was all we wanted. We had little farms, and we raised patches of corn and potatoes, and poultry and pigs, horses and cattle, and a little of everything, and the country was prosperous. In fact, in my early life I don’t know that I ever knew of an Indian family that were paupers. There is plenty of them now; there was none then.
Thus, even on the eve of consummating the union of statehood, the past was close behind. Indeed, the living memory of an actual state of nature cast “shadows of sorrow” over the solemn nuptials of Mr. Oklahoma and Miss Indian Territory. And just over the shoulder of Anna Trainor Bennet, clad in lavender silk, peered the ghost of Ned Christie.
NOTES
- According to John Locke, in the state of nature, “every man has a right to punish the offender and be executioner of the law of nature.” ↩︎
- There is much debate about the extent to which the US was actually a genuinely federalist system, wherein a group of sovereign states join together in a voluntary confederation to address specific issues of common interest. Defining sovereignty as did the (ultimately unratified) first treaty with the defeated Five Civilized Tribes in the wake of the US Civil War, as the ability of any government to maintain its “supremacy and authority within its limits,” one could argue that the US was never a federal government, apart from its brief incarnation under the Articles of Confederation. In fact, the Constitutional Convention was a coup, which overthrew the federal government and established in its stead a centralized, national government, the sole purpose of which, was to gain the power to enforce taxation on the states. “Abraham Yates’ ‘History of the Movement for the United States Constitution.’” Staughton Lynd, ed. The William and Mary Quarterly 20 (1963) pp. 223-245. Patrick Newman, Cronyism: Liberty versus Power in Early America, 1607-1849. Auburn, AL: Mises Institute; 2021, pp. 41-49, 51-73. Max Edling, A Revolution in Favor of Government: Origins of the U. S. Constitution and the Making of the American State. New York: Oxford University Press; 2003. It is often assumed that US “federalism” was characterized by decentralization. In reality, the differences between the states were superficial. Although each state might have different types of laws on slavery or commerce, every state government after the original thirteen colonies was created in replica of the US National government, as can be read in the “Organic Acts” that preceded each territory’s bid for state hood. Thus, the constitutional model was exported to wildly different regions of the North American continent as a force for homogenization of the periphery and its integration into the metropole, the economic edifice of the US. Whatever policies an individual state might enact, it would enact them through the same institutional and legal structures of the US. Bethel Saler, Settlers’ Empire: Colonialism and State Formation in America’s Old Northwest. Philadelphia, PA: University of Pennsylvania Press; 2015. Trish Loughran, The Republic in Print: Print Culture in the Age of US Nation Building, 1770-1870. New York: Columbia University Press; 2007. Gabriel Kolko, The Triumph of Conservatism: A Reinterpretation of American History, 1900-1916. Chicago, IL: Quandrangle Books; 1967 [1963]. Christopher Hodson, “Colonizing the Patrie: An Experiment Gone Wrong in Old Regime France.” French Historical Studies 32 (2009) pp. 193-222. Because classical liberals are willing to allow for the violation of individual rights under some circumstances, they still view the truncated state sovereignty of the current system as “federalism” and argue that by means of “polycentrism,” not only Indian Tribes, but also by extension, nations, can be incorporated into a just, liberal, world economic system. Adam Crepelle and Ilia Murtazashvili, “Polycentricity: A Simple Rule for Governing Indian Country.” Cosmos+Taxis 10 (2022) pp. 68-80. Brandon L. Christensen, “Reviving the Libertarian Interstate Federalist Tradition: The American Proposal.” The Independent Review 26 (2021) pp. 429-450. Robert J. Miller, Reservation “Capitalism”: Economic Development in Indian Country. Lincoln, NE: University of Nebraska Press; 2013, pp. 155-156. Njoya, Redressing Historical Injustice, p. 163. ↩︎
Misty Peñuelas is a PhD candidate in the Department of History at the University of Oklahoma. Send her mail.
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