The Cherokee Nation’s demand for a congressional delegate gets a hearing in the House

By Harmeet Kaur, CNN

Nearly two centuries ago, the US government promised the Cherokee people a seat in Congress in exchange for giving up their homelands. So far, it hasn’t delivered.

But that promise came one step closer to being fulfilled on Wednesday after the House Rules Committee held a historic hearing on seating the Cherokee Nation’s delegate — a right that the tribe asserts it was granted in the 1835 Treaty of New Echota.

“It’s time for this body to honor this promise and seat our delegate in the House of Representatives,” Cherokee Nation Principal Chief Chuck Hoskin Jr. said in his testimony. “No barrier, constitutional or otherwise, prevents this.”

Under the Treaty of New Echota, brokered between the US government and a minority group of Cherokee leaders who claimed to represent the tribe, the Cherokee were made to give up their ancestral land and relocate west of the Mississippi River. Though a majority of the Cherokee people opposed the treaty, it was ratified in 1836. Thousands of Cherokee citizens are estimated to have died on the resulting journey now known as the Trail of Tears.

The Cherokee Nation has in recent years called on the House to enforce a provision of the treaty stipulating that it “shall be entitled to a delegate in the House of Representatives of the United States whenever Congress shall make provision for the same.” In 2019, the tribe appointed as its delegate Kimberly Teehee, who previously served as a senior policy adviser for Native American affairs during President Barack Obama’s administration and as a senior adviser to former Democratic Rep. Dale Kildee of Michigan.

During Wednesday’s hearing, members of the House panel heard testimony from Hoskin and legal experts on the Cherokee Nation’s claim to a delegate, what powers the delegate would have and how the process of seating that delegate might work.

There are outstanding questions

Rep. Jim McGovern, chairman of the House Rules Committee, and GOP Rep. Tom Cole, the committee’s ranking member, both indicated during the hearing that it was important for the US to honor its obligations to tribal nations.

“The history of this country is a history of broken promise after broken promise to Native American communities,” said McGovern, a Massachusetts Democrat. “This cannot be another broken promise.”

The delegate could be seated through a simple resolution in the House or through federal statute, and McGovern said he wanted to see the issue addressed quickly. Still, he and other lawmakers said, there were questions that needed to be resolved.

Among them was why it took until 2019 for the Cherokee Nation to demand that a delegate be seated. Hoskin replied that the Trail of Tears and other federal government policies decimated the Cherokee people, and that only now had the tribe regained its strength as a political nation.

“We are now in a position where we can, as a practical matter, assert this right,” he said. “Whereas my predecessors in the two centuries before, frankly we were just trying to hang on to our way of life and rebuild.”

Lindsay Robertson, an expert in federal Indian law and a professor at the University of Oklahoma College of Law, also testified during the hearing that Congress would have to provide “clear evidence of intent to abrogate” in order to argue that the treaty was no longer valid. In other words, Hoskin said, the treaty still holds because it has never been repealed.

Another concern that was raised was whether a delegate for the Cherokee Nation would amount to “double representation,” given that the tribe’s citizens are already represented by House lawmakers from their respective states.

Hoskin argued that wouldn’t be the case, give that other delegates in the House do not have voting privileges. Washington, DC, American Samoa, Guam, the Northern Mariana Islands and the US Virgin Islands each have a delegate who serves a two-year term — while those members can vote in committee, introduce legislation and engage in debate, they can’t vote on final legislation. The Cherokee Nation delegate would likely serve a similar role, he said, adding that the position was intended to represent the interests of the tribal government.

The Cherokee Nation’s demand for a delegate could potentially open the door to similar claims from other tribes — lawmakers noted in the hearing that they had received such requests from the Choctaw Nation and the Delaware Nation based on treaties those respective tribes had made with the US. Of those claims, the Cherokee Nation’s is likely the strongest, said Mainon Schwartz, an attorney for the Congressional Research Service.

“The language of the Treaty of New Echota is the clearest of the treaties between the United States and various tribes,” she said.

Two other federally recognized Cherokee tribes — the United Keetoowah Band of Cherokee Indians in Oklahoma and the Eastern Band of Cherokee Indians in North Carolina — have argued that they are also successors to the Treaty of New Echota and are therefore entitled to a delegate.

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