Congress must seat the Cherokee delegate
Nearly two centuries ago, the Cherokee Nation bargained for a treaty right to send a non-voting delegate to the United States Congress. Today, it remains unfulfilled. This week, the House Rules Committee held a hearing on seating the Cherokee Nation's delegate in the U.S. House - an essential next step in fulfilling the treaty mandate.
In 1835, the Cherokees negotiated what became the Treaty of New Echota, which would inevitably lead to "removal" from their homeland in the southeast part of the U.S. to what is now Oklahoma. The treaty triggered the darkest period in Cherokee history during the Trail of Tears, when the Cherokee people were forcibly marched thousands of miles. A quarter of the Cherokee Nation perished.
Despite the devastation wrought by the treaty, it did, however, provide one critically important promise from the U.S. government. Cherokee negotiators insisted that they have a delegate seat in Congress. And so, in crystal clear terms, the United States "stipulated" that the Cherokee Nation "shall be entitled to a delegate in the House of Representatives … whenever Congress shall make provision for the same."
What is striking about this provision is its use of classic mandatory language that creates a right for the Cherokee Nation and imposes a duty on the United States: The Nation is "entitled to a delegate" and the U.S. "stipulated" that it "shall" comply with this duty. The sole limit on this right and duty that the Cherokee will receive its delegate "whenever Congress shall make provision for the same" - concerns only implementation timing. It does not allow Congress to decide whether to fulfill this obligation.
Despite this, the U.S. still has not fulfilled its bargain. In an effort to remedy this treaty breach, in 2019, Cherokee Nation Principal Chief Chuck Hoskin Jr. appointed Kimberly Teehee as the delegate to Congress, in accordance with the Cherokee constitution. The Cherokee's Council promptly and unanimously confirmed Delegate Teehee.
The Cherokee have now asked the House to "make provisions" to seat Delegate Teehee, leaving the
House with a clear choice between continuing to breach the treaty or abiding by the terms set nearly 200 years ago and swiftly seating Teehee.
It is settled law that treaties are the supreme law of the land and
Indian treaties are, by definition, self-executing. Indeed, as the Congressional Research Service (CRS) recently concluded, the House has unilateral authority to seat the Cherokee delegate and can do so by a majority vote through adoption of a House rule.
Some may ask whether this treaty right remains in force - it has been 180 years, after all. It's important to set the record straight on this and other legal questions that may be raised in the days ahead.
First, the fact is that the Treaty of New Echota remains as binding today on both the Cherokee and the U.S. as it was when it was negotiated. As the Supreme Court repeatedly has held, a treaty right, once established, can only be abrogated in express and unmistakably clear terms by Congress. As that same CRS report concludes: "Congress … does not appear to have explicitly abrogated the New Echota Treaty's delegate provision."
Some also have asked whether the Cherokee Nation can appoint its delegate or must it be elected like other present-day congressional delegates from places such as the Virgin Islands. But from the
Founding Era, delegates sometimes have been appointed and sometimes elected. It is plainly permissible under the U.S. Constitution.
The Cherokee Nation delegate also does not create a dual representation problem. That is because the delegate is not a "U.S. representative" in our constitutional structure. From the Founding Era on, it was always understood that congressional delegates were missing a critical ingredient, a power only representatives enjoy: vote on final passage of legislation.
Finally, questions have been raised as to whether seating Delegate Teehee will present an equal protection issue vis-à-vis other Indian tribes. It plainly does not. Treaties are the product of a bargaining process. Each treaty is unique and each party has its own priorities. Indian treaties vary wildly. In the Pacific Northwest, fishing was a central part of life so they secured fishing rights in all the "usual and accustomed places." Certain plains tribes secured offreservation hunting rights. That doesn't mean there's an equal protection issue when Indians from elsewhere cannot fish or hunt.
"As the Supreme Court repeatedly has held, a treaty right, once established, can only be abrogated in express and unmistakably clear terms by Congress. As that same CRS report concludes: "Congress does not appear to have explicitly abrogated the New Echota Treaty's delegate provision.”