Legalism in Native America - A Georgia & Cherokee Example

​The whole idea of independent sovereignty with full “property rights” being given to the individual person—is a Christian concept that the natives observed. The Cherokee Constitution—was their tribal national constitution drafted to resemble the United States Constitution and the Georgia State Constitution (a slave owning state). As an example; it was a purposeful effort by the Cherokee Nation to adopt Western ideals, as through their observations they felt a sense order, structure, justice, and liberty. Hence, they moved to partition their Cherokee Nation from tribal culture, and establish a more formal and legal presence within North America. 

In Article 2, section 1, “The power of the Government shall be divided into three distinct departments---the Legislative, the Executive, and the Judicial.”[1] This is the same wording as the American Federal Constitution, in article 1, section 1. This evidence suggests that the Cherokee established their constitution under the same formatting as the Federal Government for reasons of: 1.) Tribal Security, 2.) Tribal Continuity, and 3.) Regional Relief of Tensions.

According to todayingeorgiahistory.org, “It was designed to solidify the tribe’s sovereignty and resist white encroachment and removal -- and to counter American citizens stereotyping of Indians as savages. The Cherokee constitution proved controversial with both other Cherokee, who saw it as a threat to tradition, and the state of Georgia, which thought it threatened its sovereignty over the tribe. Georgia continued, and succeeded in, its relentless pursuit of Cherokee removal, despite the Constitution adopted on July 26, 1827” [2] 

It’s a hard lesson to bite. Especially when you learn that the Cherokee Nation was attempting to assimilate into American society as best as they could, all while maintaining their own sovereign identity. Oppositely though, it is quite hard to believe that there wasn’t political or cultural misconduct between Georgia and the Cherokee. Typically as it is in global politics, there is always a reaction to an action whether negative or positive in outcome.

I had an argument where a fellow peer said, "A constitution that has been in practice since before the upstate settlements in the 1600’s and may hold partial responsibility in the development of the settlers nation. As proof, they cite records kept by the colonists. An Onondaga named 'Canassatego', suggested that the colonists form a nation similar to the Iroquois Confederacy during a meeting of the Provincial Council of Pennsylvania in Lancaster on June 25, 1744."  This was a poor argument. 

INFLUENCES

The ideals for some Native American nations, such as the Cherokee, predate any influence provided by the Europeans. We see most similarities in how these Native Americans formatted their laws to reflect that of the settlers. This was most likely done in the attempt to most effectively convey their already sovereign nations to these foreigners in a way that most effectively would do so."

I disagree that the ideals for some Native American nations, such as the Cherokee, predate any influence provided by the Europeans. There is nowhere in history that shows evidence that Native American political ideals predated European Influence. Especially when it comes to the Constitution of National Governments. Here is why: legalism and property ownership is a Christian principle (even though all cultures understand ownership over physical items).

An example here would be the Magna Charta of 1215. The Magna Charta was a signed document and statement that embodied the principle that both sovereign nations and sovereign people are beneath the law and subject to it. Later, both Englishmen and American Colonists cited the Magna Charta as a source of their freedom. Natives of North America did not have access to this document.

Even before 1215, Alfred the Great who ruled from 871-899 was a strict follower of Catholic Saint Patrick. After many Viking invasions, Alfred the Great instituted many Christian reforms in many areas of life, including government. These reforms were based on the Ten Commandments as the basis of law and adopted many other patterns of government based from the Hebrew Republic. My point here is that, there is no way Native Americans of North America could have established a style of "Christian Constitution" without direct Western European influence. 

EVIDENCE EXPLAINED
​
According to the Michael P. Gueno, “English common law jurists expounded upon the argument for the English monarchy’s right to conquer non-Christian territories, most articulately described in Lord Chief Justice Edward Coke’s dicta in Calvin’s Case. Coke argued that all non-Christians were perpetual enemies, of the Christian and by their very nature are in a state of war with Christian nations.[3] However, despite the general consensus that Native American tribes lacked any rights to the territories that they occupied, in practice, colonists often felt compelled to obtain at least some formal semblance of legal consent from the tribes through treaties or purchase agreements to assert their claim upon tribal lands”. This further proves the principle foundation of ethics the Christians had towards the native tribes.

Mr. Gueno continues to state that, “Some colonists even denounced the unilateral rights and universal sovereignty of European Christians over the Native Americans. Colonial theologian Roger Williams rejected the assumption that being white and Christian were sufficient conditions to legitimize colonization or conversion. He argued that since Native Americans clearly believed that they owned the land, Native American–inhabited territories could not be legally treated as vacuum domicilium and settled without regard for tribal presence.” The context of property ownership was plainly understood between both parties. [4] 

Gueno concludes, “Europeans continued to debate conflicting religious interpretations of Indian rights during the early North American colonial era. Yet, whenever Native Americans were numerous, proximate, and potentially threatening, colonizing peoples felt pressed to seek Indian consent for new settlements. Thus, European powers ascribed, to some extent, in practice and in theory a sufficient degree of sovereignty to Native tribes to legitimately transfer claim of lands and administer their own communities.”[5]

It's a complex issue regarding North American history. Interpretations are one of the major battles in presenting history. 
Facts are facts however, and objective evidence is always better than subjective! And legalism (including religion) grounds every culture on earth.


Humbly,
D.L. Smith
ComplexAmerica.Org

Written: January 20, 2019



Sources:

[1] "1839 Constitution." Cherokee Nation, www.cherokeeobserver.org/Issues/1839constitution.html. Accessed 26 Nov. 2018.
[2] State of Georgia. "Cherokee Constitution." Todayingeorgiahistory.org/, 2013, www.todayingeorgiahistory.org/content/cherokee-constitution. Accessed 26 Nov. 2018
[3] David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L. M. Fletcher, & Kristen A. Carpenter, eds., Cases and Materials On Federal Indian Law, 7th ed. (Saint Paul, MN: West Academic Publishing, 2017), 63.
[4] Henry S. Commanger, ed., Documents of American History, 9th ed. (Upper Saddle River, NJ: Prentice Hall, 1968), 5–10.
[5] Gueno, Michael P. "Native Americans, Law, and Religion in America." Oxford Research Encyclopedia of Religion, University of Wisconsin–Whitewater, 10 Nov. 2017, religion.oxfordre.com/view/10.1093/acrefore/9780199340378.001.0001/acrefore-9780199340378-e-140. Accessed 10 June 2018.