CHEROKEE CONSTITUTION

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Perhaps the one Policy of the Jackson administration approved by most Tennesseans was that toward the Indians. In May, 1836, Jackson promulgated a treaty with the Cherokees providing for removal within two years. Ultimately, upon the use of military force, the Indians moved west from what was left of their ancient homeland in Tennessee. Yet they were not removed until after they had reached an advanced stage of civilization as measured by the white man's standards. What attitudes and values appear from the Cherokee Constitution of 1827 as characteristic of the Indians on the eve of their removal? Are these any different from attitudes and values discovered in previous documents about white Tennesseans?

 

"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 affording us an opportunity so favorable to the design and imploring his aid and direction in its accomplishments do ordain and establish this Constitution for the Govern­ment of the Cherokee Nation.

Article 1. The boundaries of this nation embracing the lands solemnly guaranteed and reserved forever to the Cherokee Nation by the treaties concluded with the United States is as follows, and which shall forever hereafter remain unalterably the same; To wit: Beginning on the north bank of Tennessee River at the upper part of the Chickasaw Old Fields thence along the main Channel of said River including all the islands therein to the mouth of Highwassee River thence up the main channel of said river including Islands to the first Hill which closes in or said river about two miles above Highwassee Old Town thence along the ridge which di­vides the waters of the Highwassee Little Tellico, to the Tennessee river at Tallasee thence along the main channel including Islands to the junction of Cowee & Nanteyalee thence along the ridge in the fork of ' said river to the top of the blue ridge, thence along the blue ridge to the Unicoy Turnpike road thence a straight line to the nearest main source of the Chestatee; thence along its main chan­nel, including Islands to the Chatahoochie and thence down the same to the Creek boundary at Buzzard roast; thence along the boundary line which separates this and the Creek Nation, to a point on the Coosa river opposite the mouth of Wills Creek thence down along the South Bank of the same to a point, opposite Fort Strother thence up the river to the mouth of Wills Creek, thence up along the east Bank of said Creek to the west branch, thereof and up the same to its source & thence along the ridge which separates the Tombigby & Tennessee waters, to a point on top of said ridge thence a due north Course to Camp Coffee, on Tennessee which is opposite the Chickasaw Island, thence to a place of beginning.

Section 2. The sovereignty & jurisdiction of this Government shall extend over the country with­in the boundaries above described, and the lands therein is & shall remain the common property of the nation, but the improvements made thereon and in possession of the citizens of the nation, are the exclusive & indefeasible property of the citizens respectively who made or may rightfully be in possession of them provided that the citizens of the nation possessing exclusive and indefeasable rights to their respective improvements, as expressed in this article, shall possess no rights nor power to dispose of their improvements in any manner whatever to the United States individual states, nor to individuals citizens thereof and that whenever any such citizen or citizens shall remove with their effects out of the limits of this nation and become Citizens of any other government all their rights and privileges as citizens of this nation cease, Provided nevertheless the legislature shall have power to readmit by law all the rights of citizenship to any such person or persons who may at any time desire to return to this nation by memorializing the General Council for such an admission‑Moreover the Legislature shall have power to adopt such laws & regulations as its wisdom may deem expedient and proper to prevent the citizens from monopolizing improvements with the view of speculation.

Article 2. The power of this Government shall be divided into three distinct departments, the legislative, Executive, and Judicial. 2nd. No person or persons belonging to one of these de­partments shall exercise any of the powers properly belonging to either of the others; except in cases herein after expressly directed or permitted.

Article 3. The Legislative power shall be vested in two distinct branches, a Committee and a council each to have a negative on the other, and both to be stiled the General Council of the Cherokee na­tion, and the style of their acts and laws shall be: Resolved by the Committee and Council in General Council convened.

Section 2. The Cherokee Nation as laid off into eight Districts shall remain so.

Section 3. The committee shall consist of two members from each district, to be chosen by the qualified electors of their respective districts for two years, and the elections to be held in every district on the first Monday in august for the year 1828 and every succeeding two years thereafter, and the Genl Council shall be held once a year to be convened on the second Monday of October in each year at New Echota no person shall be eligi­ble to a seat in the general Council but a free Cherokee male citizen who shall have attained to the age of twenty five years the descendants of Cherokee men by all free women (except the African race) whose parents may be or may have been living to­gether as man and wife according to the customs & laws of this nation & shall be entitled to all the rights and privileges of this Nation, as well as the posterity of Cherokee woman by all freemen, no person who is of a Negro or Mulato parentage either by the father or mother side, shall be eligible to hold any office of profit or honor or trust under this Government. The electors and mem­bers to the General Council shall in all cases except in those of treason, felony, or breach of the peace be privileged from arrest during their attendance at elections and the General Council, and in going to or returning from the same. In all elections by the people the electors shall vote Vi‑Va‑Voce.

Elections for members to the General Council for 1828 shall be held at the place of holding their several courts & at the other two precincts in each Districts which are designated by the law under which the members of this convention were elected and that the district Judges shall superintend the elections within the precinct of their respective Court Houses, and the marshalls & sheriffs to superintend the precincts which may be assigned them by the Circuit Judges of their respective Dis­tricts together with one other person who shall be appointed by the circuit Judges for each precinct within the District of their respective Circuits, and the Circuit Judges shall also appoint a Clerk to each precinct. The superintendent & Clerks shall on the Wednesday morning preceding the elections assemble at their respective Court Houses and proceed to examine and ascertain the true state of the polls ~and shall Issue to each member duly elected a certificate and also make an official re­turn of the State of the polls of election to the Principal Chief and it shall be the duty of the Sheriffs to deliver the same to‑ the executive office provided nevertheless the Genl. Council shall have power after the election of 1828 to regulate by law the pre­cincts & superintendents & clerks of ~lections in the several Districts.

Section 4. All free male citizens (excepting Negroes and descendants of white & Indian men by Negro women who may have been set free) who shall have attained to the age of 18 years shall be equally entitled to vote at all public elections. ‑,

Section 5. Each house of the‑General Council shall judge of the qualifications, elections & re­turns of its own members.

Section 6. Each house of the Genl. Council may determine the rules of its proceedings punish a member for disorderly behaviour and with the con­currence of two thirds expel a member, but not a second time for the same cause.

Section 7. Each House of the Genl. Council when assembled shall choose its own officers, a majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may prescribe.

Section 8. The members of the Committee shall each receive from the public Treasury a compensation for their services, which shall be, two dollars and fifty cents per day, during their attendance at the general Council, and the members of the Council, shall each receive, Two dollars per day for their Services during their attendance at the General Council provided that the same, may be increased or diminished, by law; but no alteration shall take effect, during the period of service of the members of the General Council, by whom such alterations shall have been made.

Section 9. The General Council, shall regulate by law, by whom, and in what manner, Writs of election be issued, to fill the vacancies which may happen, in either branch thereof.

Section 10. Each member of the General Council before he takes his seat, shall take the following oath or affirmation, to wit‑I A. B. do solemnly swear or affirm, as the case may be, that I have

not obtained my election by bribery, treats or any undue, and unlawful means, used by myself or others, by my desire, or approbation for that purpose,  that I consider myself constitutionally qualified as a member of and that in all questions, and measures which may come before me, I will give my vote, and so conduct myself, as may in my judgment appear most conducive to the interest and prosperity of this nation, and that I will bear, true faith and allegiance to the same and to the utmost of my ability, and power observe, conform to support and defend the constitution thereof.

Section 11. No person who may be convicted of felony before any Court of this nation, shall be eligible to any office or appointment of honor profit or trust, within this nation.

Section 12. The General Council shall have, power to make, all laws and regulations, which they shall deem necessary and proper, for the good of the nation, which shall not be contrary to his constitution.

Section 13. It shall be the duty of the General Council to pass such laws, as may be necessary and proper, to decide differences, by arbitrators to be appointed by the parties, who may choose that summary mode of adjustment.

Section 14. No power of suspending the laws of this nation Shall be exercised unless by the Legislature or its authority.

Section 15. That no retrospective laws nor any law, impairing the obligation of contracts shall be passed.

Section        The Legislature shall have power to make laws for laying and collecting taxes for the purpose of raising a  revenue.

Section        All Bills making appropriations shall originate in the Committee; but the Council may propose amendments or reject the same.

. Section 18. All the Bills may originate in either House, Subject to the concurrence, or rejection of the other.

Section 19. All acknowledged treaties shall be the Supreme law of the land.

Section        The General Council shall have the sole power of deciding on the construction of all treaty stipulations ‑the Council shall have the sole power of impeaching.

Section        All impeachments shall be tried by the Committee when sitting for that purpose the members shall be upon oath or affirmation no person shall be convicted without the concurrence of two-thirds of the members present.

Section        The principal chief, assistant prin­cipal chief and all civil officers under this nation shall be liable to impeachments for any misde­meanors in office, but judgment in such cases, shall not extend for than removal office, and dis­qualification to hold any office of honor, trust, or profit, under this nation the party whether convicted or acquitted, shall nevertheless be liable to indictment trial judgment & punishment according to law,

Section        The supreme execution power of this nation, shall be vested in a principal chief who shall be chosen by the Genl. Council and shall hold his office four years to be elected as follows the Genl. Council by a joint vote shall at their second annual session after the rising of this convention and at every fourth annual session thereafter on the second day after the two houses shall be organized and competent to proceed to business elect a principal Chief.

Section        No person except a natural born citizen shall be eligible to the office of principal Chief neither shall any person be eligible to that off ice who shall have not attained to the age of thirty five years.

Section        There shall also be chosen at the same time by General Council in the same manner for  four years an assistant principal Chief in case of the removal of the principal Chief from office or of his death resignation or inability to discharge the powers and duties of the said office the same shall devolve on the assistant principal Chief until the inability be removed or vacancy filled by the General Council. The General Council may by law provided for the case of removal death resig­nation or inability both of the principal and assistant principal chiefs declaring what officer shall then act as principal chief until the disability be removed or a principal chief shall be elected the principal chief and assistant principal chief shall at stated times receive for their services a com­pensation which shall neither be increased or di­minished during the period for which they shall have been elected. And they shall not receive with­in that period any other emolument from the Cher­okee nation or any other person.

      Section        Before the principal Chief enter on the execution of his office he shall take the following oath or affirmation: 'I do solemnly swear or (affirm) that I will faithfully execute the office of Prin­cipal Chief of the Cherokee nation and will to the best of my ability preserve protect & defend the Constitution of the Cherokee Nation. I

Section        He may on extraordinary occasions convene the Genl. Council at the seat of government. He shall from time to time give to the General Council information of the State of the Government and recommend to their consideration such measures as he may think expedient. He shall take care that the laws be faithfully executed. It shall be his duty to visit the different Districts at least once in two years to inform himself of the general condition of the country.

Section        The assistant principal Chief shall by virtue of his office aid & advise the principal Chief in the administration of the Government at all times during his continuance in office.

Section        Vacancies that may happen in offices the appointment of which is vested in the general council, shall be filled by the principal Chief during the recess of the General Council by granting commissions which shall expire at the end next session.

Section        Every bill which shall have passed both houses of the General Council shall before it becomes a law be presented to the principal Chief of the Cherokee Nation if he approves it he shall sign it but if not he shall return it with his objections to that house in which it shall have originated who shall enter the objections at large on their journals and proceed to reconsider it if after such reconsideration two thirds of that house shall agree to pass the Bill it shall be sent together with the objection to the other House by which it shall likewise be reconsidered and if approved of by two thirds of that house it shall become a law. If any Bill shall not be returned by the principal Chief within five days (Sundays excepted) after it shall have been presented to him the same shall be a law in like manner as if he had signed it unless the General Council by their adjournment prevents its return in which case it shall be a law unless sent back within three days after their next meeting.

Section        Members of the General Council and all officers Executive & Judicial shall be bound by oath to support the Constitution of this Nation and to perform the duties of their respective offices with fidelity.

Section        In case of disagreement between the two Houses with respect to the time of ad­journment the principal Chief shall have power to adjourn the Genl. Council to such a time as he thinks proper Provided it be not to a period beyond the next constitutional meeting of the same.

Section      The Principal Chief shall during the sitting of the Genl. Council attend at the seat of government.

Section        There shall be a council to consist of three men to be appointed by the joint vote of both Houses to advise the principal Chief in the execution part of the Government whom the principal Chief shall have full power at his discretion to assembly and he together with the assistant Principal Chief and counsellors or a majority of them may from time to time hold and keep a council for ordering and directing the affairs of the nation according to law.

     Section       The members of the Council shall be chosen annually.

Section        The Resolutions and advice of the Council shall be recorded in a Register and signed by the members agreeing thereto, which may be called for, by either House of the General Council, and any Counselor may enter his dissent, to the Resolution of the majority.

Section The Treasurer of the Cherokee Nation shall be chosen by the joint vote of each House of the General Council for the term of two years.

Section The Treasurer shall before enter­ing on the duties of his office give bond to the na­tion with Securities to the satisfaction of the Legislature, ‑for the faithful discharge of his trust.

Section No money shall be drawn from the Treasury but by warrant from the principal Chief, and in consequence of appropriation made by law.

Section        It shall be the duty of the Treasurer to receive all public monies, and to make a regular Statement and account of the receipts and expenditures of all public monies to the annual Session of the General Council.

Article 1. The Judicial powers shall be vested in a Supreme Court, and such Circuit and inferior Courts as the General Council may from time to time ordain and establish.

Art. 2. The Supreme Court, shall consist of three Judges, any two of whom, shall be a quorum.

Art. 3. The Judges of each shall hold their commissions four years, but any of them may be removed, from office, on the address of two thirds of each House of the General Council, to the prin­cipal Chief, for that purpose.

Art. 4. The Judges of the Supreme and Circuit Courts, shall at stated times receive a compensation which shall not be diminished during their contin­uance in office but they, shall receive no fees or perquisites of office‑nor hold any other office, of profit or trust, under this nation or any other power.

Art. 5. No person shall be appointed a Judge of any of the Courts, before he shall have attained to the age of thirty years, nor shall any person continue to exercise the duties of any of the said of­fices after he shall have attained to the age of seventy years.

Art. 6. The Judges of the Supreme and Circuit Courts, shall be appointed by joint vote of each House, of the General Council.

Art. 7. There shall be appointed in each dis­trict under the Legislative authority as many Jus­tices of the Peace as may be deemed the public good require‑and whose powers; duties and dura­tion in office shall be clearly designated.

Art. 8. The Judges of the Supreme Court and Circuit Court shall have complete criminal Juris­diction in such cases, and in such manner, as may be pointed out, by law.

Art. 9. Each Court shall choose its own clerk for the term of four years, but such clerks shall not be continued in office unless their qualifications shall be adjudged and approved of by the Judges of the Supreme Court, and they shall be removable for breach of good behaviour, at any time by the f Judges of the respective Courts.

Art. 10. No Judge shall sit on the trial of any cause, where the parties shall be connected with him by affinity, or consanguinity, except by con­sent of the parties. In case all the Judges of the Supreme Court, shall be entrusted in the event, if any cause, or related to all or either of the parties, the legislature may Provide by law for the Selec­tion of three men of good Character, and knowledge for the determination of thereof who shall be spe­cially commissioned by the principal Chief for the case.

Art. All writs and other process shall run in the name of the Cherokee nation, and be as test, and be signed by the respective Clerk.

Art. 12. Indictments shall conclude against 'the peace and dignity of the Cherokee nation.

Art. 13. The supreme Court shall hold its Session annually at the seat of Government to be convened on the Second Monday of October in each year.

Art. 14. In all criminal prosecutions the accused shall have the right of being heard of demanding the nature and cause of the accusation against him, or meeting the witnesses face to face of having compulsory process for obtaining witnesses in his favor‑and in prosecutions by indict­ments or information, a speedy public trial by an impartial Jury of the vicinage nor shall he be com­pelled to give evidence against himself.

Art. 15. That the people shall be secure in their persons houses Papers and Possessions from unreasonable seizures and searches & that no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without good cause, supported by oath or affirmation. All prisoners shall be bailable., by sufficient securities unless for capital offences, when the Proof is evident or presumption great.

Art. 16. Whereas the Ministers of the Gospel are by their profession dedicated to the service of God land care of Souls I and ought, not to be divested from the great duty of their functions‑Therefore no minister of the Gospel, or Public Preacher of any Religious persuasion, whilst he continues in the exercise of his pastoral functions, shall be eligible to the office of Principal Chief or a seat in either House of the General Council.

Art. 17. No person who denies the being of God, of future state of rewards and punishments, shall hold any office in the Civil department of this nation.

Art. 18. The free exercise of religious worship and serving God without distinction shall forever be allowed within this Nation, provided that this liberty of conscience, shall not be so construed, as to excuse acts of licentiousness, or Justify practices inconsistent with the peace and safety of this Nation.

Art. 19. Whenever the General Council shall determine the expediency of appointing Delegators, or other public agents, for the purpose of transacting business with the government of the United States, the principal Chief shall have Dower, to recommend, and by the advice and consent of the committee shall appoint and commission such delegates or public agents accordingly, and or all matters of interest touching the rights of the citizens of this nation, which may require attention of the United States Government. The principal Chief shall keep a friendly correspondence with government through the medium of the proper officers.

Art. 20. All commissions shall be the name and by the authority of the Cherokee nation and be sealed with the Seal of the Nation and be signed by the Principal Chief. The principal Chief shall make use of his private Seal until a national Seal shall be provided.

Art. 21. A Sheriff shall be elected in each dis­trict by the qualified electors thereof who shall hold his office for the term of two years unless sooner removed. Should a vacancy occur subse­quent to an election, it shall be filled, by the prin­cipal Chief, as in other cases and the person so appointed, shall continue in office, until the next General election when such vacancies, shall be filled, by the qualified electors, and the sheriff then elected shall continue in for two years.

Art. 22. There shall be a Marshall appointed by a joint vote of both Houses of the General Council for the term of four years, whom compensation and duty shall be regulated by law, and whose juris­diction shall extend over the Cherokee Nation.

Art. 23. No person shall for the same offence be twice put in Jeopardy of life or limb. Nor shall any persons property be taken or applied to public use, without his consent provided that nothing shall be so construed in this clause as to impair the right and power of the General Council to lay and collect taxes. That all courts, shall be open and every person for an injury done him in his property, per­son, or reputation, shall have remedy by due course of law.

Art. 24. The right of trial by Jury shall remain inviolate.

Religion, Morality, and knowledge being necessary to good government and the preservation of liberty and the happiness of mankind schools and the means of education, shall forever, be encouraged in this nation. The appointment of all offi­cers not otherwise directed by this constitution, shall be vested in the legislature.

All Laws in force in this nation at the passing of this constitution shall so continue until altered or repealed by the Legislature except when they are temporary in which case they shall expire at the times respectively limited for their duration if not continued by acts of the Legislature.

The General Council may at any time propose such amendments to this Constitution as two thirds of each House shall deem expedient and the Prin­cipal Chief shall issue a proclamation directing all the civil officers of the several Districts to Promulgate the same as extensively as possible within their respective Districts at least nine months pre­vious to the next general election and if at the first session of the General Council after such general election two thirds of each House shall be yeas and

nays ratify such proposed amendments they shall be valid to all intents and purposes as parts of this Constitution provided that such proposed amend­ments shall be read on three several days in each house as well when the same are proposed as when they are finally ratified.

 

 

 

 

 

From Robert H. White, Messages of the Governors vol. 2: 242-249.