Blood Law

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Blood Law (also called blood revenge) is the practice in traditional American Indian customary law where responsibility for seeing that homicide is punished falls on the clan of the victim. The responsibility for revenge fell to a close family member (usually the closest male relative).

Description[edit]

In contrast to the Western notion of justice, blood law was based on harmony and balance. It was believed that the soul/ghost of the victim would be forced to wander the earth, not allowed to go to the afterlife, unless harmony was restored. The death of the killer (or member of the killer's clan) restored the balance.

Since this was the widely accepted custom, blood revenge prevented feuding. The families and clans of victims and perpetrators were at peace once the balance was restored. It was not uncommon for the clan of the killer to carry out the execution. There was motivation for this - if the offending party evaded retribution, any member of the offended clan could assess the penalty against any member of the offender's clan.

The blood law worked without any government, since it was enforced by clans on a local level. Neither was there any formal trial. However, there were customary ways of getting a hearing. E.g. Cherokees had four towns of refuge, where people were not allowed to seek revenge. Also, an avenger could not touch an accused on a priest's property. The priest could arbitrate or call for a Council to examine evidence and witnesses.

Blood revenge was a question of harmony, not necessarily of a vendetta. If a member from one clan killed the member of another, then balance must be restored. Blood revenge was considered very sacred and was carried out under the utmost sincerity. If a member of the clan a) should kill a member of the clan b), the clan b) would be owed one life, and the clan a) would pay with a life. Usually, the eldest brother or nearest male relative of a victim was expected to be the avenger of spilled blood. As far as the aggressor concerns, the entire clan was responsible for the crime of one of its members, and there were no exceptions. It was a system that worked well for the Cherokees, because relatives themselves would bring the fugitive to justice to avoid like punishment.

—Cherokee by Blood Society, Justice

The United States discouraged the Blood Law, but generally left to the tribes the enforcement of the prohibition unless the murdered victim was non-Indian. Also, the government sometimes stepped in when blood law threatened to lead to war between two different tribes.

Currently in the United States, only state and federal governments or military courts can impose the death penalty. Justice under Blood Law would be considered revenge killing or summary murder, and also could be an additional aggravating circumstance requiring the death penalty for the crime.

Misuse of "Blood Law"[edit]

The term "blood law" is sometimes used in a looser sense, to mean any form of capital punishment, or any form of collective revenge without a formal trial. In this broader sense, blood law was common in Western societies. It was called outlawing, and was practiced as a part of common law in England, Europe, and Iceland. A person could be declared an outlaw for refusing to submit to a legal system. Thereafter, such a person had no recourse to the legal system, and could legally be killed or robbed. The use of "blood law" to refer to outlawry may be considered ethnocentric.

The term has also been improperly used to refer to a law passed by the Cherokee General Council on October 24, 1829, which specified capital punishment for selling Cherokee lands to foreign governments, in particular the United States.

Whereas; a law has been in existence for many years, but not committed to writing, that if any citizen or citizens of this Nation should treat and dispose of any lands belonging to this Nation without special permission from the National authorities, he or they shall suffer death;

Therefore; resolved, by the Committee and Council, in General Council convened, that any person or persons who shall, contrary to the will and consent of the legislative council of this Nation in general council convened, enter into a treaty with any commissioner or commissioners of the United States, or any officers instructed for that purpose, and agree to sell or dispose of any part or portion of the National lands defined in this Constitution of this Nation, he or they so offending, upon conviction before any of the circuit judges aforesaid are authorized to call a court for the trial of any such person or persons so transgressing.

Be it Further Resolved; that any person or persons, who shall violate the provisions of this act, and shall refuse, by resistance, to appear at the place designated for trial, or abscond, are hereby declared to be outlaws; and any person or persons, citizens of this Nation, may kill him or them so offending, in any manner most convenient, within the limits of this Nation, and shall not be held accountable for the same.
—Cherokee General Council

Since this refers to Cherokee Government law rather than traditional clan enforced law, and does not pertain to homicide, this is not blood law as understood by historians and Cherokee tradition. In fact, Cherokee blood law had been reformed in 1808 and abolished in 1810, with the introduction of the "lighthorse" police force.

This and similar "blood laws" led to low-level civil war among several of the Five Civilized Tribes during and following their removal to the West. The most noted were the friction between the Lower Creeks and the Upper Creeks and the killings between the John Ross and Ridge factions of the Cherokee Nation; both of which lasted from the 1820s to the American Civil War. Among those who were executed under such laws were Major Ridge, John Ridge, and Elias Boudinot.

See also[edit]