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chapter two Spiritual Sovereignty The Emergence of the Cherokee Nation on july 4, 1827, a convention of twenty-four delegates from the eight districts of the Cherokee Nation met in New Echota to draft a national constitution . Though the convention implemented a number of civil reforms, it essentially left the existing legal and political structure in place. The nation was already governed by a chief executive called the principal chief and a bicameral legislature. Legal disputes were already heard and resolved by an independent, hierarchical judiciary. What the convention did was to pull these institutions, created separately over the previous two decades, into the rubric of a republican constitution. More important, the decision to draft and ratify a constitution was a symbolic statement to those in the United States who were attempting to seize the Cherokees’ homeland. The Cherokees were again proclaiming to the world that they considered themselves an independent, sovereign nation of people beyond the reach and jurisdiction of the federal and state governments of the United States. The Cherokees were declaring that they expected to live free from harassment and territorial trespasses and that they intended to continue wielding the principle of national sovereignty against those who sought to usurp Cherokee land and political autonomy. In the 1810s and 1820s, the Cherokees had skillfully used the concept of sovereignty to foist off several removal proposals. They had also recently used the principle to garner support for their resistance from segments of the American missionary and philanthropic community. Though the Cherokees had artfully argued their political status in public memorials and negotiations with the United States, ultimately they had been unable to silence the demands of those Americans who sought to exile the Indian nations to the West. Consequently, in 1830, the Cherokees and their legal counsel resolved to seek recognition of their sovereign status from the United States Supreme Court.1 The word “sovereignty” must have evoked different connotations to Indians under the threat of removal than it did for the European political Spiritual Sovereignty 35 theorists who devised the concept. The origins of the idea of sovereignty dated back, at least, to the ancient Greeks, but concentrated philosophical scholarship on the concept began during the Crusades when canonical legal scholars attempted to discern whether non-Christian peoples possessed legal and political rights under biblical and natural law. The European discovery of “infidel” civilizations in Africa and the Americas also encouraged debate on the comparative rights of peoples and nations. Between the fifteenth and eighteenth centuries, several European students of the law of nations produced treatises designed to aid diplomats and monarchs in their statecraft. All of these works, by such men as Franciscus de Victoria, Hugo Grotius, Samuel Pufendorf, and Jean Bodin, adopted sovereignty as the fundamental principle for identifying and prioritizing the rights of nations . The students of the law of nations, however, had difficulty in agreeing on the definition and characteristic attributes of sovereignty. In describing the development of the concept in European thought, the political scientists Michael Ross Fowler and Julie Marie Bunck concluded that “the concept of sovereignty has been used not only in different senses by different people, or in different senses at different times by the same people, but in different senses by the same person in rapid succession.” Generally speaking, though, by the nineteenth century, when European and American lawyers and political philosophers used the term “sovereignty” they were expressing the idea that there existed “a final and absolute political authority in the political community” under consideration. A sovereign nation, in other words, was one that exhibited legal supremacy over all other sources of authority within a geographical area and one that maintained enough military, diplomatic, and economic power to preserve its independence relative to other nations or governments.2 The lawyers for the Cherokees in the Removal Crisis cases—all white men trained in the English common law and familiar with European political philosophy—clearly had some semblance of this definition in mind when they used the word to characterize the nature of the Cherokee polity. For the Cherokees themselves, the word perhaps evoked even more complicated meanings and emotions.3 Sovereignty implied more than political autonomy or territorial integrity; sovereignty suggested a deep spiritual connection to an ancestral homeland. In addition, sovereignty was a function of historical memory for the Cherokees. In other words, sovereignty raised recollections of traditions and “law-ways” that traced back to the time before Europeans wandered into Cherokee territory.4 At the...

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