The fundamental idea regarding punishment was that it cleansed the culprit from the guilt of his crime. Criminals carried no guilt with them out of the world. After undergoing the prescribed punishment the culprit was innocent. It mattered not what he had done. If the law and custom had been enforced against him (or her) he was thereafter, to all intents and purposes, as innocent and as honorable as any other man in the community.
If a person of one clan killed a member of another it was held that the crime had been committed against the entire clan, and it was the right and the duty of every member of the aggrieved clan to seek reparation from the other.
The Ancients of the injured clan formally demanded satisfaction of the other. Two persons were generally selected to carry the news and make the demand. They dressed in a certain way and put certain marks on their persons. They always dressed in haste. Before they reached the edge of the town they rushed forward shouting and were perfectly safe when coming in this manner. No person might then interrupt them. No one might touch them. While on such missions they were sacred. They then lead a right to deliver the message, and no person could question them. If there was no dispute as to the facts, the clansmen adjusted the matter without an appeal to the higher authorities, by one of the following methods:
Atonement by adoption and substitution
If the murderer was a man of consideration, a fine ball player, a valiant warrior, or a successful hunter, and an excellent man in every way, the clan of the murdered man, when they held their council, might say: “Had we not better save this man? We cannot bring back our own kinsman. Here are his mother, his family, his sisters who are dependent on him. Let, us, then, save this man’s life.” Thereupon, he would be adopted to take the place and position of the murdered man. It was not always necessary for a prisoner of war to run the gauntlet before being adopted by some member of the clan. Sometimes the wife of the murdered man accepted the murderer as her husband after he had been adopted into the clan. In like manner, the mother of the murdered son or daughter might adopt the murderer in place of such a child.
Atonement by heroic deeds
If the injured clan had lost one or more of its members in war with another tribe and such injury was still unavenged, the murderer might volunteer to become the avenger, in which case, if the proposition was accepted, he might at once, proceed to perform his self-imposed task. To this usage Muskogee tradition attributed the origin of the custom of taking scalps as evidence of victory.
Atonement by payment of wergild
If the murdered man was a person of low standing in the tribe, a warrior of no renown, a poor hunter, a generally worthless fellow, and the murderer was a man of high standing, and if the latter had a brother or cousin of the same standing as the murdered man, the brother of low degree was usually substituted for the real murderer.
Atonement by death
If the murderer himself was a man of small repute it often happened that his clansmen consented to his death, and then the clansmen of the murdered man were permitted to execute the sentence. If the members of the clans interested failed to settle the difficulty speedily the matter was usually brought up before the Council of the Town and settled there. Generally three men, but sometimes six, were selected to hear the evidence. The fact that a murder had been committed was sometimes called to the attention of the clan by the Town Chief. In case the parties to the murder belonged to different towns and the clansmen failed to adjust the difficulty the case was brought up before the Council of the Confederation. But if a man killed one of his own clansmen the matter was settled wholly within the clan. No compensation or other satisfaction was made by the clan itself; in this case, the only question that arose concerned the advisability of killing the murderer. The friends of the murdered man might claim their right to take his life, and they might proceed to the killing; but if the murdered man was of less eminence than the murderer, an attempt was usually made by the most closely related clansmen to placate with gifts the anger of the nearer relatives and friends of the murdered man by repeating to them what an injury to the clan it would be to lose a man of such high standing.
When the murderer was a man of distinction he was executed with arrows, but the old women finished a man of no consideration with a war club, and a woman was also executed with a war club. Time was given before the execution to prepare for the death ceremonies. Sometimes the criminal was sent to a hostile town where he was executed by those who did not know him. If his own town decided to execute him it was done by certain officers who had this among their functions.
It may be mentioned as a curious fact that if the executioners failed to kill their victim at the first attempt it was held that some mystic power had interposed, and the offender was adjudged in consequence was interpreted as involving mystic interference.
If a serious personal difficulty arose between members of different clans it was settled simply by agreement between the clans. All difficulties of this nature were settled by calling the town together. In case a member of one clan lost an eye by the act of a member of another clan, one of the other clan must also sacrifice an eye if reparation was not otherwise made.
With respect to a very troublesome man, his own kinsmen, his own clan would kill him unless, after due warning, he mended his ways, for they had determined that he was not worthy of life that he would corrupt the young men and cause them to do evil, and that he was not capable of raising good children, for these children would be bad like him. If a man were outlawed no individual might kill him, but after they had related to him his evil deeds as a warning to others, he was executed by the collective body.
If a man or woman stole, an object, the injured clan through its own spokesman notified the clansmen of the culprit. After hearing the evidence the accused clan was obliged to bring forward a return or payment of equivalent value. Twofold was the custom of the Creeks; they never attempted to deny the theft if they were satisfied with the character of the evidence. The clan as a whole examined the evidence brought forward to support the charge. If they found the charge true (and their own honor made it necessary for them to find out the truth about it), they decided what should be done under the circumstances. Sometimes in making reparations they turned the culprit over to the offended clan for punishment, where he might be whipped or otherwise punished, although his own clan could pay for the stolen object. But if he was a good man in other respects they willingly paid for the stolen object. If the clan made the reparation by returning the object stolen with a good-will offering or by paying the equivalent of the stolen property, in making reparation the clansmen declared to him the law of theft, pointing out the different steps in wrongdoing which had brought him to this culpable act and the evil consequences of the act as well. The restitution or reparation being made, the offender was considered just as good as any other member of the clan, his physical punishment had the same effect.