Foundation for Tribal Sovereignty Set on July 4 at First Cherokee Constitutional
On July 4, 1827, a delegation of Cherokee lawmakers convened in New Echota, Georgia, to begin drafting the tribe’s first constitution.
The date of July 4, selected nine months earlier, was a strategic choice, said Tiya Miles, professor of American culture, history and African and Native American studies at the University of Michigan. Organizers of the Cherokee Nation’s first Constitutional Convention intentionally decided to assemble on the Fourth of July—the day set aside by the United States to celebrate its independence from British control.
“They chose July 4 as a day that would resonate for a broader American populace with the intention of signaling their own independence from the United States,” Miles said. “At the same time, the convention produced a Cherokee governing structure modeled in some key ways after the U.S. federal and state governments.”
Fashioned after the U.S. Constitution, the document began on a familiar note. Its preamble states, “We, the representatives of the people of the Cherokee Nation, in Convention assembled, in order to establish justice, ensure tranquility, promote our common welfare, and secure to ourselves and our posterity the blessings of liberty; acknowledging with humility and gratitude the goodness of the sovereign Ruler of the Universe, in offering us an opportunity so favorable to the design, and imploring His aid and direction in its accomplishment, do ordain and establish this Constitution for the Government of the Cherokee Nation.”
The constitution created a centralized, three-branch government and detailed its powers. The document also reaffirmed Cherokee sovereignty and protected the nation against the “threat of U.S. colonialism,” Miles said.
Although it borrowed much of its language and structure from the U.S. Constitution, the Cherokee version had several “jarring” differences, said Julie Reed, assistant professor of history at the University of Tennessee-Knoxville. In its first article, the Cherokee Constitution lays out its claim to communal land holdings of its ancestral land base in perpetuity—a concept that challenged the federal government’s desire to dole out parcels of land to individual owners or remove Indians from their lands entirely.
“Communal land holding was a key thing, and it was what the U.S. was trying to undermine,” said Reed, who is an enrolled member of the Cherokee Nation. “The Cherokee Constitution is modeled in a way public officials would understand. They’re trying to speak the same language, but also trying to articulate different ideas about sovereignty and use of land.”
The Constitutional Convention met as the state of Georgia was passing increasingly restrictive laws, said Catherine Foreman-Gray, history and preservation officer for the Cherokee Nation. The federal government was working to dissolve the Cherokee government and Georgia was aggressively trying to force “civilization” on the Cherokee or remove them from the state.
“Georgia had started passing a series of laws to assert its jurisdiction over the Cherokee,” Foreman-Gray said. “We were not allowed to hold council, we were not allowed to testify in court, we were not allowed to mine gold on our own land. The constitution really came as a way to draw distinct boundaries and reaffirm our sovereignty.”
The constitution allowed the Cherokee Nation to seek redress from the federal government, Foreman-Gray said. The document opened the path for the famous Cherokee cases of the 1830s when the U.S. Supreme Court considered whether Native Nations had equal status with states.
“We were trying to hold on to our lands, to reaffirm there would be no more land cession to Georgia,” Foreman-Gray said. “We were trying to fight our battles in federal court, to show that Georgia had no authority over us. This wasn’t an issue just between the Cherokee and Georgia, but that the United States government had a responsibility to uphold our rights.”
The constitution was part of a longer, centralizing process that came in the early 19th century, Reed said. Although the Cherokee signed treaties in 1817 and 1819 that ceded additional lands to the United States, they also set up a national committee, established a treasury and invented a syllabary that allowed them to write in their native language.
“Much of the earlier chaos was over, and the Cherokee population was growing again,” Reed said. “The idea of losing more land meant that the Cherokee would, over the long haul, suffer. So they uniformly said they would not cede any more land through treaty negotiations, and the constitution was part of reaffirming this.”
Although the constitution asserted Cherokee sovereignty and defended them against threats of removal, the document also restricted the rights of some community members. Cherokee women were denied the right to vote or hold political office, as were Cherokee men with African heritage.
“Lots of Cherokee adamantly opposed some of the things in the constitution, but they also recognized that if they couldn’t forge a government acknowledged by other officials, the other alternative was to be under the laws of the states,” Reed said. “They agreed it was better to have their own form of government than the tyranny of illegal settlers on their lands.”
The convention completed its first draft of the constitution on July 26, 1827. It was adopted the following day and garnered praise from the national press, including an editorial in the New York Observerexclaiming that “their laws… if we judge from what we have seen, are superior to the wisdom of Lycurgus or Solon.”
Seven months later, in February 1828, the tribe published the first issue of its newspaper, the Cherokee Phoenix. The paper, published in the Cherokee language, combatted reports by the national press that portrayed the Cherokee as “rebellious Indians” when they refused to cede more land, Reed said.
“The convention, the constitution and the newspaper really served as weapons against treachery,” she said. “Cherokee political leaders were incredibly savvy in these moments. Opening the convention on July 4 was not lost on them. They knew exactly what they were doing, and they were going for a maximum effect. It had immediate resonance and people started questioning whether they could really call the Cherokee savages anymore.”
Yet the constitution ultimately could not protect the Cherokee. In 1829, gold was discovered on Cherokee lands and shortly afterward Georgia began seeking legal authority to remove the Cherokee from their homes.
In December 1835, a minority faction of Cherokee leaders signed the Treaty of New Echota, ceding all the tribe’s territory in the Southeast and removing the Cherokee to Indian Territory. Beginning in 1836 and ending with the Trail of Tears, an estimated 16,000 Cherokee were forcibly removed from their ancestral homeland.
“The constitution protected the Cherokee for a time, but it also pissed off aggressive politicians who removed the Indians from the Southeast,” Reed said. “But the long-term consequence of the document is positive in terms of sovereignty. Because of the Cherokee decision to make this moment about politics and law, their cases had to be mitigated in federal systems. Those early decisions are essentially the bedrock that make the foundational cases for tribal sovereignty today.”