Citizenship, Land, and Law: Constitutional Criticism and John Milton Oskison's Black Jack Davy

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.

Preamble, Constitution of the Cherokee Nation, passed in 1827¹

As the Preamble above attests, for over one hundred and eighty years Cherokees have exercised rhetorical sovereignty and represented themselves publicly as a people through the legal discourses of nationhood and constitutional citizenship, a "living tradition" as Lisa Brooks powerfully demonstrates in her essay in this issue, with a "deep and extensive genealogy on this continent."² Indeed, to suggest that Cherokee nationhood sprang into being in 1827 ignores not only this constitutional tradition of continental liberty and survivance but also, as Rennard Strickland has shown, the systematic, adaptive efforts Cherokees made toward nationhood in the previous three decades as a means both of maintaining tribal control of their homelands and of holding the nascent national community together in the face of radical social, political, and economic changes.³ Cherokee constitutionalism emerged within the context of colonial conflict and three removal crises; survived two internal civil wars, the War between the States, and innumerable nineteenth-century assaults on Cherokee autonomy by railroad interests, land speculators, and territorial advocates; and persisted despite allotment, Oklahoma statehood, and the termination policies of the twentieth century.⁴ Though the Cherokee Nation was officially dissolved in the years between statehood in 1907 and reorganization in the mid-1970s—a period referred to by some as the "dark ages" of Cherokee history—Cherokee nationhood and the experiences of being born citizens into a sovereign Indian nation remained paradigmatic for many, a fact not least evident in the writings of Cherokee educators and public intellectuals such as John Milton Oskison, Rachel Caroline Eaton, Mabel Washbourne Anderson, Emmett Starr, Lynn Riggs, and Ruth Muskrat Bronson, among others.⁵ Through the persistence of the idea of themselves as a nation-people, Cherokees weathered the post-allotment trauma of the twentieth century, and with an official shift in federal Indian policy from termination to self-determination in the early 1970s, the Cherokee Nation reorganized in 1976 under a new constitution based upon the one written one hundred and forty-nine years earlier.⁶ In 1999 Cherokees amended that constitution to reflect an increasing emphasis on sovereignty and self-determination, exchanging the language of tribes and membership for that of nations and citizenship.⁷ Recent referenda to address the ever-contentious issue of citizenship evidence a continued—if troubled—commitment to constitutional self-determination. Though at times fraught with violence, bitter factionalism, and intense debate, the development of Cherokee constitutionalism—from the first written law in 1808 through the 2003 referendum—stands firmly as a significant component of Cherokee national identity and political belonging.⁸

Building upon David Carlson's interrogation of the extent to which Gerald Vizenor's intellectual ideas cohere in political practice, and Lisa Brooks's location of the Constitution of the White Earth Nation within a much older genealogy of indigenous constitutional traditions in the Americas, I examine in this essay the potential of using tribally specific constitutional traditions as a lens through which to read tribal-national literatures. Specifically, I foreground the concepts of territory, law, and citizenship as they emerged in a Cherokee constitutional tradition as markers of Cherokee sovereignty in Oskison's western romance, Black Jack Davy, and examine how such a frame might complicate our understandings of texts composed during an era most commonly seen in decidedly nonnational terms, as either overly accommodationist or outright assimilationist.⁹ Such frames, I believe, have thus far prevented scholars from seriously engaging the political implications of texts that don't fit neatly into contemporary critical practices or conform ideally to contemporary political...