1839 Cherokee Constitution born from Act of Union
TAHLEQUAH, Okla. – The 175th anniversary of the Cherokee Nation’s 1839 Constitution will be commemorated during this year’s Cherokee National Holiday.
It was signed Sept. 6, 1839, after contentious meetings between two Cherokee factions – Eastern Cherokees or the Ross Party led by Principal Chief John Ross, and the Old Settlers who settled Arkansas and what is now eastern Oklahoma in the early 1800s. A third faction, the so-called Treaty Party, that in 1835 signed away what remained of Cherokee land in the Southeast for $5 million, sided with the Old Settlers.
Those led by Ross had just arrived in Indian Territory in the spring of 1839 after being removed from their homes in the Southeast.
Sequoyah, who had moved to Indian Territory in 1829 from Arkansas, attempted to unite the Old Settlers, who had their own government, with the Ross Party. On July 12, 1839, a convention was held, and after deliberation a formal Act of Union was adopted, whereby the two branches declared to be “one body politic, under the style and title of the Cherokee Nation, succeeding both of the tribal organizations.
Ross; George Lowrey, president of the National Committee; Goingsnake, speaker of the council; and 13 others signed the act on behalf of the Ross Party.
Acting Principal Chief John Looney, Council President George Guess and 15 other Old Settlers leaders, including Sequoyah, signed for that faction.
Another convention met at Tahlequah in September 1839, composed mostly of Eastern Cherokees, to frame a new constitution. The document established rules for election of legislators and chiefs and common holding of the lands of the Nation. Another feature was suffrage for boys over 18 years of age. For purposes of civil administration and the apportionment of legislators, the CN was divided into nine districts similar in size and organization to counties. They were called Canadian, Illinois, Sequoyah, Flint, Delaware, Goingsnake, Tahlequah, Saline and Cooweescoowee, the last one being named in honor John Ross’ Cherokee name.
The 1839 Constitution was preceded by the 1827 Constitution, which was drafted on July 26, 1827, at New Echota, Ga. The document outlined a structure of government, which included an elected principal chief, a senate and a house of representatives.
In 1898, the CN’s 1839 Constitution ceased to govern the tribe as the Curtis Act instituted by the federal government dissolved tribal governments in Indian Territory to assimilate tribes and prepare for Oklahoma statehood, which came in 1907.
Until 1971, the federal government played a paternalistic role for the Cherokee people, choosing their chiefs and dictating tribal matters. In 1971, after his selection as the tribe’s first elected chief since 1903, William Wayne Keeler presided over the drafting of a new Cherokee constitution.
The 1975 Cherokee Constitution, signed by Principal Chief Ross Swimmer in October 1975, superseded the 1839 Constitution. The new constitution contained a Bill of Rights, specifications for tribal citizenship or citizenship, three branches of government (executive, legislative and judicial), tribal elections, qualifications for elected office and rules for council meetings.
A constitutional convention was held in Tahlequah in 1999 to revise and update the tribe’s constitution. Delegates from throughout the CN discussed, debated and modified the 1975 document. The new constitution included a clause that removed the need to ask the Bureau of Indian Affairs’ permission to amend the constitution.
Cherokee voters approved the amendment in May 2003 that removed federal requirements for amendments to the 1975 Constitution. Two months later, voters adopted the 1999 Constitution as the tribe’s supreme law.
The tribe and BIA negotiated changes to the new constitution and it was ratified in 2003. However, the secretary of the Interior would not approve it.
Proponents of the new constitution filed a lawsuit with the tribe’s Judicial Appeals Tribunal (now Supreme Court) in 2005, asking it to rule whether the 1999 law was valid. On June 7, 2006, the JAT ruled the law became the tribe’s “organic document” when the Cherokee people approved it. The CN officially began using the 1999 Constitution in July 2006.
However, as late as November 2011, the BIA stated it has not approved the tribe’s 1999 Constitution or an amendment that led to its implementation. CN Attorney General Todd Hembree, who in November 2011 was the Tribal Council’s attorney, wrote a letter that stated CN has a strong argument that the U.S. government has recognized the 1999 Constitution because the government has approved numerous government-to-government actions between itself and the CN in the past five years.
In July, Hembree took part in a ceremony at the Capitol Square in Tahlequah that celebrated the 1839 Act of Union, which had allowed for the creation of the 1839 Constitution.
“This Act of Union was not born out of a desire for good government. It was born out of necessity,” Hembree said. “Because if we didn’t come together at that point in time, under those circumstances, all that we fought to preserve could have been lost. It was not just advantageous to unite; it was essential. And that is what happened here, 175 years ago.” Sources:
“Sequoyah (ca. 1778-1843),” Oklahoma Historical Society;
“A History of the Cherokee Indians,” Vol. 8, No. 4, December 1930, Chronicles of Oklahoma, Hugh T. Cunningham;
“Curtis Act,” Oklahoma Historical Society, M. Kaye Tatro;
“Cherokee,” Oklahoma Historical Society, Rennard Strickland;
“Echo Hawk opinion may have ‘drastic consequences,’” Cherokee Phoenix, Nov. 22, 2011.