Statement of
Mainon A. Schwartz
Legislative Attorney
Before
Committee on Rules
U.S. House of Representatives
Hearing on
“Legal and Procedural Factors Related to
Seating a Cherokee Nation Delegate in the
U.S. House of Representatives”
November 16, 2022
Congressional Research Service
7-5700
www.crs.gov
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hairman McGovern, Ranking Member Cole, and distinguished Members of the House
Committee on Rules, my name is Mainon A. Schwartz, and I am a legislative attorney in the
American Law Division of the Congressional Research Service (CRS). Thank you for inviting
me to discuss legal and procedural factors related to seating a Cherokee Delegate in the U.S.
House of Representatives.
The issue of seating a Cherokee Delegate in the House rose to prominence on August 22, 2019, when
Cherokee Nation Principal Chief Chuck Hoskin, Jr. announced his tribe’s intention to nominate a delegate
to represent the Cherokee Nation. This announcement invoked a provision of the 1835 treaty between the
Eastern Cherokee Tribe of Georgia (“Cherokee Tribe” or “Cherokee”
1
) and the U.S. government (New
Echota Treaty).
2
On August 29, 2019, the Council of the Cherokee Nation unanimously approved Chief
Hoskin’s nomination of Kimberly Teehee to serve as the Cherokee Delegate.
3
This hearing offers an
opportunity to consider potential legal and procedural matters related thereto.
4
If seated, the Cherokee Delegate could not be a full voting participant in the House under Article I,
Section 2 of the Constitution, which sets forth requirements for the composition of the House and
qualifications of its Members. Among these is the requirement that “Members [be] chosen every second
Year by the People of the several States”
5
—a requirement not met by the Cherokee Delegate.
Accordingly, the Cherokee Delegate could not vote on the House floor to pass legislation. However, a
Cherokee Delegate could be authorized by the Chamber to vote in committee and to address Members
from the floor. This is similar to the current role of delegates for the U.S. territories and the District of
Columbia,
6
which changes in its particulars (such as voting in the Committee of the Whole) from time to
time. In the 117th Congress—and previously in the 103rd, 110th, 111th and 116th Congresses—delegates
have been permitted to vote in and preside over the Committee of the Whole.
7
When evaluating possible congressional action in response to the Cherokee Nation’s nomination of a
delegate to the House, Congress may consider an array of legal and procedural factors. These include
1
For purposes of this testimony, when speaking of historical documents and agreements, “Cherokee Tribe” or “Cherokee” is
used to distinguish the tribe that was a signatory to the Treaty of New Echota and other historical agreements from any modern-
day descendant groups recognized by the federal government, including the Cherokee Nation.
2
Treaty with the Cherokees, 7 Stat. 478 (Dec. 29, 1835) [hereinafter New Echota Treaty].
3
For additional background on Ms. Teehee’s nomination, see Stephanie Akin, Delegate-in-Waiting (for 184 Years), CQ WEEKLY
27–29 (Oct. 15, 2019).
4
While congressional interest over the delegate provision of the New Echota Treaty has focused mainly upon its invocation by
the Cherokee Nation, it has also been cited in other claims brought by descendants of the historical Cherokee Tribe that was a
signatory to that treaty. See, e.g., Molly Young, A tribal delegate in Congress? Cherokee campaign ramps up under treaty
promise, THE OKLAHOMAN (Sept. 24, 2022), https://www.oklahoman.com/story/news/politics/government/2022/09/24/cherokee-
delegate-in-congress-gains-support-amid-grassroots-campaign/69512293007/ (noting related claim asserted by United
Keetoowah Band of Cherokee Indians). This testimony does not address the claims that have been or could be brought by
different Cherokee tribes, or whether the New Echota Treaty might permit the seating of multiple delegates from descendants of
the historical Cherokee Tribe). A brief history of the Cherokee Tribe may be found in Cherokee Nation v. Nash, 267 F. Supp. 3d
86, 94 note 11 (D.D.C. 2017).
5
U.S. CONST. art. 1, § 2. For more legal analysis of this language, see Cong. Rsch. Serv., Voter Qualifications for House of
Representatives Elections, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artI-S2-C1-
2/ALDE_00001032/ (last visited Nov. 4, 2022).
6
See generally 48 U.S.C. Ch. 16 (territorial delegates to Congress); District of Columbia Self-Government and Governmental
Reorganization Act (District of Columbia Home Rule Act), Pub. L. No. 93-198, 87 Stat. 774 (1973).
7
See CRS Report R40555, Delegates to the U.S. Congress: History and Current Status, by Jane A. Hudiburg.
C
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certain principles of treaty interpretation, analysis of the relevant treaty provisions and historical context,
evaluation of events subsequent to treaty signing, procedural options for recognizing a Cherokee
Delegate, and potential objections to such actions.
Principles for Interpreting Treaties with Indian Tribes
Treaties with federally recognized tribes
8
are sui generis because of tribes’ unique legal status under the
Constitution.
9
Early in U.S. history, the U.S. Supreme Court characterized federally recognized tribes as
“domestic dependent nations” with a relationship to the federal government akin to a ward’s relationship
to its guardian.
10
As a consequence, the courts have held that a trust relationship exists between the United
States and federally recognized tribes, and have developed three distinct canons of construction for
interpreting Indian treaties.
11
First, treaties with Indian tribes should generally be interpreted in the sense
in which the tribal signers would have understood them.
12
Second, ambiguities regarding tribal interests
should be construed to the tribes’ benefit.
13
Third, if Congress intends to diminish tribal lands or abrogate
a treaty, it must do so explicitly.
14
Notwithstanding this clear-intent requirement, Congress retains the
authority to abrogate an Indian treaty by subsequent legislation.
15
Treaty of New Echota (1835): the Cherokee Delegate Provision in Context
Article 7 of the New Echota Treaty between the United States and the Cherokee Tribe provides that the
Cherokee “shall be entitled to a delegate in the House of Representatives of the United States whenever
Congress shall make provision for the same.”
16
An examination of the Treaty’s terms could provide
additional context for that provision.
8
Unless otherwise specified, the terms “Indian” and “tribe” reflect statutory language denoting tribal entities that, through a
process known as federal recognition or federal acknowledgment have a government-to-government relationship with the United
States and are entitled to certain rights and privileges. See, e.g., 25 U.S.C. § 5131(a) (directing Secretary of Interior to publish
annually a list of all Indian tribes recognized as “eligible for the special programs and services provided by the United States to
Indians because of their status as Indians”).
9
U.S. CONST. art. 1, § 8 (Congress shall have the power to “regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.”). For more legal analysis of Congress’s Indian Commerce Clause power, see Cong. Rsch.
Serv., Scope of Commerce Clause Authority and Indian Tribes, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artI-S8-C3-1-3/ALDE_00012976/ (last visited Nov. 4, 2022).
10
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 10, 13 (1831).
11
“[T]he standard principles of statutory construction do not have their usual force in cases involving Indian law.” Montana v.
Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985). See also Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
12
Worcester, 31 U.S. (6 Pet.) at 546–47, 552–54 (Marshall, C.J.); see also id. at 582 (McLean, J., concurring) (“How the words
of the treaty were understood by [the Indians], rather than their critical meaning, should form the rule of construction.”); accord
Herrera v. Wyoming, 139 S. Ct. 1686, 1699 (2019).
13
Worcester, 31 U.S. (6 Pet.) at 582 (McLean, J., concurring) (“The language used in treaties with the Indians should never be
construed to their prejudice.”); accord Herrera, 139 S. Ct. at 1699 (“Indian treaties must be interpreted . . . with any ambiguities
resolved in favor of the Indians.” (internal quotation marks omitted)).
14
Worcester, 31 U.S. (6 Pet.) at 554 (Marshall, C.J.) (congressional intent to diminish tribal sovereignty must “have been openly
avowed.”); see also Herrera, 139 S. Ct. at 1698 (“If Congress seeks to abrogate treaty rights, ‘it must clearly express its intent to
do so.’ ” (quoting Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202 (1999))).
15
There must be “clear evidence that Congress actually considered the conflict between its intended action on the one hand and
Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” Mille Lacs, 526 U.S. at 202–03.
16
New Echota Treaty, 7 Stat. 478, 482, art. 7. That Article reads:
The Cherokee nation having already made great progress in civilization and deeming it important that every
proper and laudable inducement should be offered to their people to improve their condition as well as to guard
and secure in the most effectual manner the rights guarantied [sic] to them in this treaty, and with a view to
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In the New Echota Treaty, the Cherokee signatories agreed to relinquish their eastern lands and remove
their Nation to new territory west of the Mississippi. Ultimately, tens of thousands of members of the
Cherokee underwent a forced trek westward known as the Trail of Tears.
17
The Treaty signing occurred
during an era when one of the federal government’s policy goals was removal of Indian tribes to unsettled
lands in the west, freeing eastern lands for non-Indian settlers.
18
The parties entered into the Treaty
19
three
years after the Supreme Court, in Worcester v. Georgia,
20
rejected Georgia’s attempt to exercise authority
within Cherokee country.
21
Thus, at a time when the Cherokees were suffering “increasing abuse from
white settlers,” the United States “signed a treaty with the supporters of removal”
22
among the Cherokees.
However, because the signatories did not include Cherokee leaders,
23
the New Echota Treaty appears to
have lacked the support of the majority of the Cherokee Tribe.
24
Those who signed the New Echota Treaty assented to a Preamble stating that they desired to move west
and establish a permanent homeland for their entire Nation.
25
Under Article 16 of the Treaty, the Cherokee
illustrate the liberal and enlarged policy of the Government of the United States towards the Indians in their
removal beyond the territorial limits of the States, it is stipulated that they shall be entitled to a delegate in the
House of Representatives of the United States whenever Congress shall make provision for the same.
17
According to one scholar: “The ratification of the Treaty of New Echota ‘legalized’ the forced removal of Cherokees from their
Georgia and Tennessee homeland and led directly to the infamous Trail of Tears.” Ezra Rosser, The Nature of Representation:
The Cherokee Right to a Congressional Delegate, 15 B.U. PUB. INT. L.J. 91, 91–92 (2005). See also Chadwick Smith & Faye
Teague, The Response of the Cherokee Nation to the Cherokee Outlet Centennial Celebration: A Legal and Historical Analysis,
29 TULSA L.J. 263, 273 (1993) (“This treaty was the basis for the infamous Trail of Tears. In Article 1, the Cherokees
relinquished to the United States all their lands east of the Mississippi.”).
18
In 1830, Congress enacted what is known as the Removal Act “[t]o provide for an exchange of lands with the Indians residing
in any of the states or territories, and for their removal west of the river Mississippi.” Act of May 28, 1830, ch. 148, 4 Stat. 411.
19
New Echota Treaty, 7 Stat. 478, 478 (“Articles of a treaty, concluded at New Echota in the State of Georgia on the 29th day
Decr. 1835 by General William Carroll and John F. Schermerhorn commissioners on the part of the United States and the Chiefs
Head Men and People of the Cherokee tribe of Indians.”).
20
Worcester, 31 U.S. (6 Pet.) at 561 (Marshall, C.J.) (“The Cherokee nation, then, is a distinct community, occupying its own
territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of
Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts
of [C]ongress.”).
21
The dispute over state jurisdiction within the Cherokee reservation has reached the Supreme Court twice. In Cherokee Nation
v. Georgia, 30 U.S. (5 Pet.) 1 (1831), and Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), the Supreme Court essentially
upheld the United States’ authority, ruling Georgia lacked authority to enforce its laws within the Cherokee territory. For a
discussion of the dispute, see GRANT FOREMAN, INDIAN REMOVAL 229–50 (1932); FRANCIS PAUL PRUCHA, AMERICAN INDIAN
TREATIES: THE HISTORY OF A POLITICAL ANOMALY 156–82 (1994).
22
1 COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 1.03, (4)(a).
23
Id. § 1.03 n.176 (“When the unauthorized treaty was signed, Principal Chief John Ross was actually in Washington, D.C.
petitioning for relief from abuse and trespass committed by Georgian soldiers and settlers against Cherokees and their lands.”
(citing COLIN G. CALLOWAY, PEN & INK WITCHCRAFT: TREATIES AND TREATY MAKING IN AMERICAN INDIAN HISTORY 145
(2013))). See also Rosser, supra note 14, at 92 (“An influential minority ultimately rebelled against Ross’s leadership and signed
the Treaty of New Echota on behalf of the Cherokee majority who did not share the treaty-signers’ perspectives . . . . Presented
officially by the administration of President Andrew Jackson as bringing with them liberal terms for the Cherokees, the U.S.
negotiators for the Treaty of New Echota bypassed the elected Cherokee leadership.”).
24
See H.R. DOC. NO. 25-316, at 1–2, 7 (1838) (“The Cherokee Delegation submitting the memorial and protest of the Cherokee
people to Congress” claimed there were 15,665 signatures protesting that the New Echota Treaty was concluded by
“unauthorized individual Cherokees . . . [and] a violation of the fundamental principles of justice, and an outrage on the primary
rules of national intercourse, as well as of the known laws and usages of the Cherokee nation; and, therefore, to be destitute of
any binding force on us.”). For further historical discussion, including Principal Chief Ross’s efforts to prevent ratification and a
U.S. soldier’s characterization of the treaty as “no treaty at all,” see, e.g., Carl J. Vipperman, The Bungled Treaty of New Echota:
The Failure of Cherokee Removal, 1836-1838, 73 GA. HIST. Q. 540, 540 (1989), http://www.jstor.org/stable/40582016 (“Even
friends of President Andrew Jackson’s administration condemned the treaty as a fraud on the Cherokee people . . . .”).
25
New Echota Treaty, 7 Stat. 478, 478 (“[T]he Cherokees are anxious to make some arrangements with the Government of the
United States whereby the difficulties they have experienced by a residence within the settled parts of the United States under the
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Tribe agreed “to remove to their new homes within two years from the ratification of this treaty.”
26
Provisions on claims for former reservations
27
and for accommodating Cherokees who wished to remain
28
were eliminated based on President Andrew Jackson’s “determination . . . that the whole Cherokee people
should remove together and establish themselves in the country provided for them west of the
Mississippi.”
29
Article 1 of the New Echota Treaty ceded Cherokee lands east of the Mississippi to the United States in
consideration of $5 million.
30
Under Article 2, the United States agreed to supplement western lands
already provided for the Cherokees in earlier treaties by selling 800,000 additional acres to them in fee
simple for $500,000.
31
Article 5 provided that the ceded lands would not “be included within the
territorial limits or jurisdiction of any State or Territory” without the Cherokee Tribe’s consent.
32
Other
provisions of the Treaty addressed establishing forts;
33
guaranteeing peace;
34
extinguishing Osage title to
lands within the area guaranteed to the Cherokees;
35
covering expenses for Cherokee removal;
36
appointing agents to value improvements on ceded land;
37
investment of Cherokee funds;
38
commuting
the Cherokee school fund;
39
granting pensions to Cherokee warriors for aid in the War of 1812;
40
and
jurisdiction and laws of the State Governments may be terminated and adjusted; and with a view to reuniting their people in one
body and securing a permanent home for themselves and their posterity . . .”).
26
Id. at 485, art.16.
27
Id. at 484–85, art. 13 (“[T]o make a final settlement of all the claims of the Cherokees for reservations granted under former
treaties to any individuals belonging to the nation . . . it is . . . expressly understood by the parties . . . that all the Cherokees and
their heirs and descendants to whom any reservations have been made under any former treaties with the United States, and who
have not sold or conveyed the same by deed or otherwise and who in the opinion of the commissioners have complied with the
terms on which the reservations . . . and which reservations have since been sold by the United States shall constitute a just claim
against the United States and the original reservee or their heirs or descendants shall be entitled to receive the present value
thereof from the United States . . .”).
28
Id. at 483, art. 12 (“Such heads of Cherokee families as are desirous to reside within the States of No. Carolina Tennessee and
Alabama subject to the laws of the same; and who are qualified or calculated to become useful citizens shall be entitled, on the
certificate of the commissioners to a preemption right to one hundred and sixty acres of land or one quarter section . . .”).
29
Id. at 488 (Supplementary Articles to a Treaty).
30
Id. at 479, art. 1.
31
Id. at 480, art. 2 (“[W]hereas it is apprehended by the Cherokees that . . . there is not contained a sufficient quantity of land for
the accommodation of the whole nation on their removal west of the Mississippi the United States in consideration of the sum of
five hundred thousand therefore hereby covenant and agree to convey to the said Indians, and their descendants by patent, in fee
simple the following additional tract of land situated between the west line of the State of Missouri and the Osage reservation.”).
32
Id. at 481, art. 5.
33
Id. at 480–81, art. 3.
34
Id. at 481, art. 6 (“The United States agree to protect the Cherokee nation from domestic strife and foreign enemies and against
intestine [sic.] wars between the several tribes.”).
35
Id. at 481, art. 4.
36
Id. at 482, art. 8 (“The United States also agree and stipulate to remove the Cherokees to their new homes and to subsist them
one year after their arrival there and that a sufficient number of steamboats and baggage wagons shall be furnished to remove
them comfortably, and so as not to endanger their health, and that a physician well supplied with medicines shall accompany each
detachment of emigrants removed by the Government.”).
37
Id. at 482, art. 9 (“The United States agree to appoint suitable agents who shall make a just and fair valuation of all such
improvements now in the possession of the Cherokees as add any value to the lands . . . .”).
38
Id. at 482, art. 10 (“The President of the United States shall invest in some safe and most productive public stocks of the
country for the benefit of the whole Cherokee nation who have removed or shall remove to the lands assigned by this treaty to the
Cherokee nation west of the Mississippi the following sums as a permanent fund for the purposes hereinafter specified and pay
over the net income of the same annually . . . .”).
39
Id. at 483, art. 11 (“[T]o commute their permanent annuity of ten thousand dollars for the sum of two hundred and fourteen
thousand dollars, the same to be invested by the President of the United States as a part of the general fund . . . .”).
40
Id. at 485, art. 14 (“[S]uch warriors of the Cherokee nation as were engaged on the side of the United States in the late war with
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division of the funds among the various Cherokee groups.
41
Finally, the Treaty included provisions
authorizing the commissioners to settle the claims specified in the Treaty
42
and providing for advances of
annuities to meet pre-removal conditions.
43
In terms of shedding light on the likely meaning of the delegate provision, the larger context of the New
Echota Treaty’s other provisions is not likely to be conclusive. One could argue that the concessions made
by the Cherokee signatories were so broad that the concessions made by the United States would also
have been interpreted expansively. One could argue conversely that the delegate provision was only one
small part of a wide-ranging treaty, so that no inferences should be drawn from the broader negotiations.
Because no court has been faced with a question related to the New Echota Treaty’s delegate provision, it
is difficult to predict which interpretive arguments would be most persuasive.
Current Status of the Delegate Provision
The delegate provision of the New Echota Treaty, on its face, contemplates additional congressional
action before a Cherokee Delegate could be seated in the House. Congress has never affirmatively
provided for a Cherokee Delegate in the House pursuant to the Treaty.
Whether a treaty provision carries the force of law depends on the nature of the agreement—specifically,
whether the treaty provisions are self-executing or non-self-executing.
44
The Supreme Court has long
recognized a distinction between self-executing treaties—those that “automatically have effect as
domestic law”—and non-self-executing treaties—those that “do not by themselves function as binding
federal law.”
45
A self-executing treaty is “ ‘equivalent to an act of the legislature’ . . . when it ‘operates of
itself without the aid of any legislative provision.’ ”
46
A non-self-executing treaty, however, may be
enforced only “pursuant to legislation to carry [it] into effect.”
47
Treaty provisions are deemed non-self-
executing if the text manifests intent that the provision not be enforceable by U.S. courts because the
legislature must first “execute the contract.”
48
There is also broad agreement that treaty provisions should
be construed as non-self-executing if they require action that the Constitution assigns exclusively to
Congress or one of its chambers.
49
Great Britain and the southern tribes of Indians, and who were wounded in such service . . . .”).
41
Id. at 485, art. 15 (“[S]hall be equally divided between all the people belonging to the Cherokee nation east according to the
census just completed; and such Cherokees as have removed west since June 1833 . . . .”).
42
Id. at 485–86, art. 17.
43
Id. at 486, art. 18 (“[W]hereas the nation will not, until after their removal be able advantageously to expend the income of the
permanent funds of the nation it is therefore agreed that the annuities of the nation which may accrue under this treaty for two
years, the time fixed for their removal shall be expended in provision and clothing for the benefit of the poorer class of the nation
. . . .”).
44
CRS Report RL32528, International Law and Agreements: Their Effect upon U.S. Law, by Stephen P. Mulligan.
45
Medellin v. Texas, 552 U.S. 491, 504–05 (2008).
46
Id. See also Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829), overruled in part by United States v. Percheman, 32 U.S.
(7 Pet.) 51 (1833) (noting that under the U.S. Constitution, a treaty is the “law of the land” and should be regarded by courts as
“equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision”).
47
Medellin, 552 U.S. at 505.
48
Foster, 27 U.S. (2 Pet.) at 314; see also Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) (noting “the United States ratified
[the Covenant on Civil and Political Rights] on the express understanding that it was not self-executing and so did not itself
create obligations enforceable in the federal courts”).
49
See, e.g., Edwards v. Carter, 580 F.2d 1055, 1058 (D.C. Cir. 1978) (per curiam) (“[E]xpenditure of funds by the United States
cannot be accomplished by self-executing treaty; implementing legislation appropriating such funds is indispensable. Similarly,
the constitutional mandate that ‘all Bills for raising Revenue shall originate in the House of Representatives,’. . . appears, by
reason of the restrictive language used, to prohibit the use of the treaty power to impose taxes.”), cert. denied, 436 U.S. 907
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In the New Echota Treaty, the phrase “whenever Congress shall make provision for the same” appears to
render the provision for a Cherokee Delegate non-self-executing. The United States, at least, seemed to
believe that congressional action would be required to seat a Cherokee Delegate.
50
Constitutional
considerations may also favor reading the delegation provision as non-self-executing. The House does not
have a direct role in the treaty-making process. It could raise significant constitutional issues if the
President and Senate were able to bind the House to seat a delegate by way of a treaty commitment,
without the need for implementing legislation approved by that chamber.
51
As a result, a court would
seem unlikely to find that the New Echota Treaty created an enforceable (self-executing) right in the
absence of further action by Congress.
In addition to the self-execution question, Congress may consider whether the New Echota Treaty’s
delegate provision is precatory in nature—meaning it may anticipate that Congress could take steps to
allow a delegate without obligating it to do so.
52
Congress may be empowered to apply elements of its
views on this and other matters of interpretation because, although U.S. courts often have final authority
to interpret treaties’ meanings and requirements, Congress plays a unique role in treaty interpretation
when it implements treaties through domestic legislation.
53
In any event, if Congress were inclined to consider congressional action in relation to the New Echota
Treaty’s delegate provision, it might first consider its views on whether the Treaty and its delegate
provision continue in force. The canons of treaty interpretation discussed above, though generally viewed
as guidelines for judicial interpretation and not binding on Congress, may inform Congress’s
interpretation.
The Possibility of Ineffectiveness or Abrogation
The New Echota Treaty’s delegate provision, even if not self-executing, remains relevant to the extent
Congress could still take action to effectuate it. That is, the delegate provision would generally remain in
effect unless it has been abrogated or otherwise rendered invalid or unenforceable. Several considerations
may be relevant to this analysis.
54
(1978). See also 5 ANNALS OF CONG. 771 (1796) (House resolution declaring that “when a Treaty stipulates regulations on any of
the subjects submitted by the Constitution to the power of Congress, it must depend for its execution, as to such stipulations, on a
law or laws to be passed by Congress”).
50
See generally Rosser, supra note 14, at 119–29 (discussing context surrounding the delegate provision in the New Echota
Treaty). For example, the 1834 articles of agreement between John H. Eaton, U.S. Commissioner and a Cherokee delegation,
predating negotiation over the 1835 New Echota Treaty, contemplated the seating of a Cherokee delegate by way of a statutory
enactment, stating that “it is agreed that, as soon as a majority of the Cherokee people shall reach their western homes, the
President will refer their application to the two Houses of Congress for their consideration and decision.” S. EXEC. DOC. NO. 23-
7, at 4.
51
See, e.g., Edwards, 580 F.2d at 1058 (observing need for legislation to implement treaty obligations that require authority
exclusively vested in the House). See also U.S. CONST. art. I, §§ 1, 2, 5 (vesting legislative power in the House and Senate;
providing that the House “shall chuse their Speaker and other Officers”; and establishing that each chamber “may determine the
Rules of its Proceedings”).
52
See Precatory, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining precatory as “requesting, recommending, or expressing a
desire rather than a command”). Treaties and international agreements sometimes contain precatory or hortatory provisions that
express aspirational or anticipated goals, but do not create legal obligations. For background on non-legal provisions in
international agreements, see CRS Report RL32528, supra note Error! Bookmark not defined., at 12-15.
53
See, e.g., Interpreting Treaties, CONST. ANNOTATED, https://constitution.congress.gov/browse/essay/artII-S2-C2-1-
6/ALDE_00012957/ (last visited Nov. 10, 2022).
54
Federal courts have continued to reference the New Echota Treaty as a whole, presuming its continued validity. See, e.g.,
E. Band of Cherokee Indians v. Lynch, 632 F.2d 373 (4th Cir. 1980); Choctaw Nation v. Oklahoma, 397 U.S. 620, 624 (1970).
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Effectiveness. Although Congress has never enacted legislation to establish and fund an Office of the
Cherokee Delegate to the House, it also has never explicitly abrogated the New Echota Treaty’s delegate
provision. One could argue that the Cherokee Tribe broke off relations with the United States when it
entered into a subsequent treaty with the Confederacy, thereby violating and possibly terminating or
abrogating the New Echota Treaty.
55
However, the President does not appear to have expressly abrogated
the Treaty following that action, and the Treaty of July 19, 1866 (1866 Treaty), subsequently restored
relations between the Cherokee and the United States.
56
The 1866 Treaty did not explicitly refer to a
Cherokee Delegate, but did explicitly reaffirm “[a]ll provisions of treaties heretofore ratified and in force,
and not inconsistent with the provisions of this treaty”
57
—a broad statement that seemingly reaffirmed
that the New Echota Treaty’s delegate provision.
Accordingly, one view of the Treaty’s delegate provision is that it represents an obligation to seat a
delegate nominated by the Cherokee Nation (even if that obligation might require implementing
legislation
58
), rather than merely a pledge that Congress might consider whether to seat such a delegate if
nominated.
59
Another view, finding support in differences between the New Echota Treaty’s provision and
other treaties executed by the Cherokees,
60
might suggest that the New Echota Treaty was not understood
to constitute a pledge to seat a Cherokee Delegate. Under that view, another treaty’s more explicit
description of a Cherokee Delegate’s powers
61
suggests that the Cherokee delegation negotiating with the
Confederacy recognized and sought to correct a perceived inadequacy in the New Echota Treaty’s
language. From this perspective, a comparison of the delegate provisions in three Cherokee treaties may
be instructive:
55
Treaty with the Cherokees, Confederate States of America–Cherokee Nation of Indians, Oct. 7, 1861, Statutes at Large of the
Provisional Government of the Confederate States of America 394 (James M. Matthews ed., 1864),
https://docsouth.unc.edu/imls/19conf/19conf.html#p394 [hereinafter Treaty with the Confederacy]; Act of July 5, 1862, 12 Stat.
512, 528; 25 U.S.C. § 72 (“Whenever the tribal organization of any Indian tribe is in actual hostility to the United States, the
President is authorized, by proclamation, to declare all treaties with such tribe abrogated by such tribe if in his opinion the same
can be done consistently with good faith and legal and national obligations.”).
56
Treaty with the Cherokees, 14 Stat. 799 (July 19, 1866).
57
Id. at 806, art. 31.
58
See supra notes 8–9 (discussing whether the delegate provision may require implementing legislation).
59
See Rosser, supra note 14, at 118 (“The long standing principle of interpreting treaties between the U.S. government and
Indian tribes in the light most favorable to Indians provides the proper framework for judging the delegate right contained in the
New Echota Treaty. . . . [D]espite protests as to its legitimacy, Cherokees were told that the Treaty was unalterable. The right to a
delegate was not a promise included by U.S. agents in the Treaty in an ad hoc manner.”).
60
Treaty with the Confederacy, supra note 51, at 394. The Treaty with the Confederacy contains a preliminary recital declaring it
was “[m]ade and concluded . . . between . . . the Cherokee Nation of Indians, by John Ross, the Principal Chief, Joseph Verner,
Assistant Principal Chief, James Brown, John Drew and William P. Ross, Executive Councillors, constituting with the Principal
and Assistant Principal Chiefs the Executive Council of the Nation, and authorized to enter into this treaty by a General
Convention of the Cherokee People.” Id.
61
The Treaty with the Confederacy’s delegate provision reads:
In order to enable the Cherokee Nation to claim its rights and secure its interest without the intervention of
counsel or agents, it shall be entitled to a Delegate to the House of Representatives of the Confederate States
of America, who shall serve for a term of two years, and be a native-born citizen of the Cherokee Nation, over
twenty-one years of age, and laboring under no legal disability by the law of the said nation; and each Delegate
shall be entitled to a seat in the hall of the House of Representatives, to propose and introduce measures for the
benefit of the said nation, and to be heard in regard thereto, and on other questions in which the nation is
particularly interested, with such other rights and privileges as may be determined by the House of
Representatives.
Treaty with the Confederacy, supra note 51 at 403–04, Art. XLIV, and 411 (amending original text). The original text would
have provided the delegate authority equal to that of territorial delegates to the Confederate States. Id. at 403–04.
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1. The first Cherokee treaty with the United States, the 1785 Treaty of Hopewell, speaks of
“the right to send a deputy of their choice, whenever they think fit to [the Confederated]
Congress,” possibly referring to an agent or the equivalent of a lobbyist, rather than a
right of representation in the Articles of Confederation-era national legislature.
62
2. The 1835 Treaty of New Echota provides for “a delegate in the House of Representatives
of the United States whenever Congress shall make provision for the same,”
63
arguably
incorporating some notion of representation.
3. The 1861 Treaty with the Confederacy specifies a method of electing and compensating
the Cherokee Delegate to the Confederate House of Representatives, while also detailing
the included powers: “each Delegate shall be entitled to a seat in the hall of the House of
Representatives, to propose and introduce measures for the benefit of the said nation, and
to be heard in regard thereto, and on other questions in which the nation is particularly
interested.”
64
Abrogation. Arguments might be made that the New Echota Treaty’s Cherokee Delegate provision was
tied to the fate of Indian Territory, and that Congress abrogated the delegate guarantee either by not
providing for a separate Indian Territory as envisioned by Congress in the 1830s, or by including the
Indian Territory in the State of Oklahoma. However, such arguments would be hampered by the lack of
specific evidence of Congress’s intent to abrogate.
65
As noted, Supreme Court jurisprudence generally
66
rejects treaty abrogation by implication and instead seeks legislative precision and clarity. Nonetheless,
that this possible purpose or context for the delegate provision may no longer be relevant could factor into
Congress’s policy considerations today.
Although Congress considered various bills to remove Indian tribes to the West and to create an Indian
Territory separate from any state,
67
none was enacted. The House Committee on Indian Affairs reported
favorably a bill that would have created an Indian Territory over which a confederation of Indian tribes
would exercise limited self-government subject to federal law and control.
68
That bill included a delegate
62
Treaty with the Cherokees, 7 Stat. 18, 20, art. 12 (Nov. 28, 1785) (“That the Indians may have full confidence in the justice of
the United States, respecting their interests, they shall have the right to send a deputy of their choice, whenever they think fit, to
Congress.”). In Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831), the Supreme Court acknowledged the existence of the
deputy provision, but provided no binding interpretation of it. Compare id. at 25 (Johnson, J.) (“It is true, that the twelfth article
gives power to the Indians to send a deputy to congress; but such deputy, though dignified by the name, was nothing and could be
nothing but an agent, such as any other company might be represented by. It cannot be supposed that he was to be recognized as a
minister, or to sit in the congress as a delegate.”), with id. at 39 (Baldwin, J.) (“The meaning of the words ‘deputy to congress’ in
the twelfth article may be as a person having a right to sit in that body, as at that time it was composed of delegates or deputies
from the states, not as at present, representatives of the people of the states; or it may be as an agent or minister.”). For a
discussion of the Justices’ various interpretations of the New Echota Treaty’s delegate provision in Cherokee Nation v. Georgia,
see Rosser, supra note 14, at 121–22 & nn. 156–61 and accompanying text.
63
New Echota Treaty, 7 Stat. 478, 482, art. 7.
64
Treaty with the Confederacy, supra note 51, at 404.
65
See generally McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) (rejecting argument that Oklahoma statehood and assorted statutory
actions sufficed to diminish or disestablish a reservation).
66
See supra note 12 and accompanying text; see also, e.g., Washington v. Wash. State Com. Passenger Fishing Vessel Ass’n,
443 U.S. 658, 690 (1979) (“Absent explicit statutory language, we have been extremely reluctant to find congressional
abrogation of treaty rights . . . .”); United States v. Dion, 476 U.S. 734, 739 (1986) (“Explicit statement by Congress is preferable
for the purpose of ensuring legislative accountability for the abrogation of treaty rights. . . . We have not rigidly interpreted that
preference, however, as a per se rule; where the evidence of congressional intent to abrogate is sufficiently compelling, ‘the
weight of authority indicates that such an intent can also be found by a reviewing court from clear and reliable evidence in the
legislative history of a statute.’ ” (citations omitted)).
67
H.R. REP. NO. 23-474, at 18 (1834) (House Committee on Indian Affairs stating: “Our inability to perform our treaty guaranties
[sic] arose from the conflicts between the rights of the States and of the United States.”).
68
Id. at 34 (“A Bill to provide for the establishment of the Western Territory, and for the security and protection of the emigrant
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provision, but not for a Cherokee Delegate specifically.
69
The Committee detailed its reasons for
recommending such a delegate, including a delegate’s ability to communicate the “practical effect” of
legislation as well as suggestions and complaints.
70
Oklahoma Statehood. Another argument may be that the Cherokee Delegate provision did not survive the
Oklahoma Statehood Act of 1906
71
because Indian Territory was no longer outside any state. However,
the New Echota Treaty does not include language characterizing the Cherokee Delegate provision as
temporary (i.e., as terminating upon an event such as statehood), and the Supreme Court has rejected
abrogation of Indian treaty rights by implication.
72
Nor has any statutory language purporting to abrogate
the Cherokee Delegate provision been identified to date.
73
None of the chief laws leading to Oklahoma
and other Indian tribes therein.”).
69
Id. at 37, § 11 (“That in order to encourage the said tribes, and to promote their advancement in the arts of civilized life, and to
afford to them a convincing proof of the desire of the United States that they may eventually be secured in all the blessings of
free government, and admitted to a full participation of the privileges now enjoyed by the American people, it shall be competent
for the said confederated tribes to elect, in such manner as the General Council may prescribe, a Delegate to Congress, who shall
have the same powers, privileges, and compensations as are possessed by the Delegates of the respective Territories.”).
70
The Committee explained:
In view of the relations which this bill will establish, there seems to be, not only a propriety, but a necessity of
their having a delegate in Congress. The intercourse laws which, from time to time, shall be passed, and the
acts of the executive officers we may place among them, are intimately connected with their prosperity. From
a delegate we shall be able to learn their practical effect, and to receive suggestions for their amendment. It
may be of still more consequence to them. Through their delegate we shall hear their complaints. Hitherto our
agents have been almost irresponsible; not because our laws have not made them responsible, but because there
was no channel through which their acts of injustice could reach us. And, on the other hand, the policy and
legislation of our Government will be faithfully represented to them, ensuring mutual respect and confidence.
. . . . The right to a delegate in Congress is a subject of the deepest solicitude to the Indians, and will be received
by them as the strongest assurance for the fulfillment of our guaranties in all future time. It will probably do
more to elevate the Indian character, and to establish and consolidate their confederacy, than any, or, perhaps,
all other causes combined.
Id. The Committee Report also provided a history of other treaties calling for Indian delegates to Congress, noting the 1830
Treaty with the Choctaws revealed that the Executive Branch negotiators doubted their ability to bind Congress in the matter of
an Indian delegate. Id. at 21–22. Article XXII of the 1830 Treaty states: “The Chiefs of the Choctaws . . . have expressed a
solicitude that they might have the privilege of a Delegate on the floor of the House of Representatives extended to them. The
Commissioners do not feel that they can under a treaty stipulation accede to the request, but at their desire, present it in the
Treaty, that Congress may consider of, and decide the application.” Treaty with the Choctaws, 7 Stat. 333, 338, art. XXII (Sept.
27, 1830).
71
Act of June 16, 1906, 34 Stat. 267. A Presidential Proclamation of Oklahoma Statehood followed. Proclamation No. 60, 35
Stat. 2160 (Nov. 16, 1907) (Theodore Roosevelt).
72
In Minnesota v. Mille Lacs Band of Chippewa Indians, for example, the Court declared, in relation to whether off-reservation
treaty hunting and fishing rights survived Minnesota’s statehood, that “[t]reaty rights are not impliedly terminated upon
statehood.” 526 U.S. 172, 207 (1999). Likewise, the Court in 2020 affirmed that Oklahoma statehood did not disestablish a
reservation that had been established in Indian Territory by treaty. McGirt v. Oklahoma, 140 S. Ct. 2452, 2477 (2020). In a 2019
case involving whether the Crow Tribe’s treaty-protected hunting rights survived Wyoming statehood, the Court explained that
the crucial question in determining a treaty’s status is whether Congress either (1) expressly abrogated the treaty or (2) the treaty
terminated under its own provisions. If neither of those can be answered affirmatively, the treaty continues in force. Herrera v.
Wyoming, 139 S. Ct. 1686, 1696 (2019). Statehood is thus irrelevant to treaty termination analysis unless the legislation
permitting statehood demonstrates Congress’s clear intent to abrogate that treaty, or statehood is written as a termination point in
the treaty.
73
Because “the laws governing the Indians of Oklahoma are so voluminous,” FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN
LAW 425 (1942 ed.), CRS has not exhaustively examined them, but is not aware of any statutory mention of the New Echota
Treaty’s delegate provision.
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statehood—the Oklahoma Organic Act of 1890,
74
the Dawes Commission Act,
75
the Curtis Act of 1898,
76
and the Five Tribes Act
77
—includes any specific mention of a Cherokee Delegate or the relevant New
Echota Treaty provision.
In light of the above, it seems unlikely that a reviewing court would find sufficient evidence that Congress
has previously acted to abrogate the Cherokee Delegate provision. As such, it would appear that Congress
could reasonably conclude that it may still take action to effectuate it and seat a nonvoting Cherokee
Delegate in the House.
Procedural Options to Seat a Cherokee Delegate
Congress could continue to take no action on the Cherokee Nation’s nomination of a delegate. However,
if it were to consider seating a Cherokee Delegate in the House, Congress could evaluate the following
procedural options. Of these options, a legislative enactment has historically been the exclusive method
(albeit in territorial rather than tribal contexts) and therefore may be the option least likely to raise
constitutional concerns.
1. Enactment of Legislation
Historically, the method for adding a new delegate to Congress has been though the enactment of
legislation. No such position in Congress has been established except by law. This approach would
require House and Senate agreement, and presidential approval (or a veto override), of a bill (H.R./S.) or
joint resolution (H.J.Res./S.J.Res.) that establishes a seat in Congress for the new delegate.
78
Two territories acquired by the United States from Spain—Puerto Rico and the Philippines—were
afforded representation by way of a “resident commissioner” rather than a “delegate.” Initially, the
resident commissioners from Puerto Rico and the Philippines did not enjoy the same privileges as prior
delegates (for instance, they were not allowed on the House floor). The Philippines are no longer a
territory of the United States, and the representative from Puerto Rico is now known as the Resident
Commissioner, a position functionally equivalent to “delegate,” except that the Resident Commissioner
serves a four-year instead of two-year term.
Reproduced below is Table 1 of CRS Report R40555, Delegates to the U.S. Congress: History and
Current Status, which identifies legislative enactments since the First Congress (1789 to 1790) providing
for territorial representation in the House. Most of the territories listed in Table 1 were later incorporated
into the Union as states.
Table 1. Statutes Providing for Territorial Representation in Congress
Territory
Statute
Year
Northwest of the River Ohio
South of the River Ohio
1 Stat. 50
1 Stat. 123
1789
a
1790
74
Act of May 2, 1890, 26 Stat. 81. Section 16 of this legislation provided for an Oklahoma Territorial Delegate to the House. Id.
at 89.
75
Act of Mar. 3, 1893, § 16, 27 Stat. 612, 645–46.
76
Act of June 28, 1898, 30 Stat. 495.
77
Act of Apr. 26 1906, 34 Stat. 137.
78
For instance, a delegate representing the Northern Mariana Islands, a U.S. territory, was added to the House through passage of
S. 2739, the Consolidated Natural Resources Act of 2008, Pub. L. No. 110-229, 122 Stat. 754. The legislation defined attributes
of the position such as the manner and timing of the delegate’s election (S. 2739 §§ 712, 714), qualifications required to hold the
position (id. § 713), and the level of compensation afforded to the position’s occupants.
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Territory
Statute
Year
Mississippi
1 Stat. 549
1798
Indiana
2 Stat. 58
1800
Orleans
2 Stat. 322
1805
Michigan
2 Stat. 309
1805
Illinois
2 Stat. 514
1809
Missouri
2 Stat. 743
1812
Alabama
3 Stat. 371
1817
Arkansas
3 Stat. 493
1819
Florida
3 Stat. 354
1822
Wisconsin
5 Stat. 10
1838
Iowa
5 Stat. 10
1838
Oregon
9 Stat. 323
1848
Minnesota
9 Stat. 403
1849
New Mexico
9 Stat. 446
1850
Utah
9 Stat. 453
1850
Washington
10 Stat. 172
1853
Nebraska
10 Stat. 277
1854
Kansas
10 Stat. 283
1854
Colorado
12 Stat. 172
1861
Nevada
12 Stat. 209
1861
Dakota
12 Stat. 239
1861
Arizona
12 Stat. 664
1863
Idaho
12 Stat. 808
1863
Montana
13 Stat. 853
1864
Wyoming
15 Stat. 178
1868
District of Columbia
16 Stat. 426
1871
Oklahoma
29 Stat. 81
1890
Puerto Rico
31 Stat. 86
1900
Hawaii
31 Stat. 141
1900
Philippine Islands
32 Stat. 694
1902
Alaska
34 Stat. 169
1906
District of Columbia
84 Stat. 848
1970
Virgin Islands
86 Stat. 118
1972
Guam
86 Stat. 118
1972
American Samoa
92 Stat. 2078
1978
Commonwealth of the Northern
Mariana Islands
122 Stat. 868
2008
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Source: “Non-voting delegates to the House,” Congressional Record, vol. 124 (October 3, 1978), p. 33287; P.L. 110-229.
a. This measure from the First Congress reenacted the provisions of the Northwest Ordinance of 1787, with the
changes made necessary by ratification of the Constitution. The original Northwest Ordinance was enacted under the
Articles of Confederation. For information on the history and evolution of Delegate representation in Congress, see
CRS Report R40555, Delegates to the U.S. Congress: History and Current Status, by Jane A. Hudiburg.
2. Incorporation of Position into the Standing Rules
Alternatively, the U.S. House of Representatives could potentially choose to seat a new delegate by
adjusting its standing rules to accommodate a Cherokee Delegate, either at the outset of a new Congress
or at some point thereafter. A simple House resolution (H.Res.), which does not require bicameralism and
presentment and therefore are not binding law, may be appropriate for this purpose. Provisions to seat a
new delegate could be presented to the House as part of the standing rules package traditionally agreed to
on the opening day of a new Congress, or as a separate resolution proposing changes to the standing rules
that would allow the delegate to be seated.
Measures to change the House’s standing rules fall within the jurisdiction of this Committee. If called up
on the House floor, a resolution to seat the new delegate could be considered “in the House” under the
one-hour rule, under suspension of the rules (clause 1 of Rule XV), or through terms set forth in a special
rule reported by this Committee and agreed to by the House.
Compared to enactment of bills or joint resolutions, a change to the standing rules could be accomplished
with support from a simple majority of Members (a quorum being present), or with two-thirds support via
suspension procedure. The Senate does not have a role in making changes to House rules. However, the
House’s standing rules expire at the end of each Congress. For a position established in this way to
endure, it would need to be incorporated into the standing rules of each subsequent Congress.
The legality of seating a delegate through a House rule, rather than by legislation passed by both
chambers and enacted into law, is untested. The Constitution does not reference delegates. While the
Constitution vests each chamber of Congress with the power to “determine the Rules of its
Proceedings,”
79
this authority focuses on the internal procedures of each body, rather than who may be
seated.
80
The power to determine rules is also bounded by the Constitution. As the Supreme Court has
stated, “the Constitution empowers each house to determine its rules of proceedings. It may not by its
rules ignore constitutional restraints or violate fundamental rights.”
81
There may be reasons to believe that seating a delegate requires exercise of legislative authority allotted
by the Constitution. At least one federal court determined that Congress’s constitutional authority to
establish seats legislatively for nonvoting territorial delegates derives from the Constitution’s Territories
Clause and District Clause.
82
That court characterized these clauses as conferring “Congress with plenary
power to regulate and manage the political representation” of the U.S. territories and the District through
the enactment of legislation. The House has historically seemed to take the view “that the office of a
delegate representing a territory (or the District of Columbia) could not be created other than through
legislation.”
83
79
U.S. CONST. art. I, § 5, cl. 2.
80
See, e.g., Powell v. McCormack, 395 U.S. 486, 550 (1969) (holding that the House was without power to exclude a duly
elected Member from being seated); Michel v. Anderson, 817 F. Supp. 126, 134 (D.D.C. 1993) (citing the Territories Clause and
the District Clause as the source of authority for the House to seat delegates, rather than its authority to determine the rules of its
proceedings), aff’d, 14 F.3d 623 (D.C. Cir. 1994).
81
United States v. Ballin, 144 U.S. 1, 5, 12 S.Ct. 507, 509 (1892).
82
Michel, 817 F. Supp. at 134.
83
See Michel, 14 F.3d at 628 (noting all parties agreed that statute was needed to seat delegates in litigation brought by then-
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Assuming, based on prior practice relating to the seating of territorial and District Delegates, that a
constitutional source of authority besides the Rules Clause would be necessary to seat a Cherokee
Delegate, that authority could theoretically come from the President’s power to “make treaties,”
84
and
Congress’s authority to “make all Laws which shall be necessary and proper for carrying into Execution
. . . Powers vested in [the] Constitution in the Government of the United States.”
85
The House’s ability to
seat the Cherokee Delegate, in other words, derives from the terms of the New Echota Treaty. The terms
of that Treaty, in turn, appear to require an act of Congress—i.e., a statutory enactment—to authorize the
delegation to be seated.
86
Accordingly, the seating of a delegate by way of a change to House rules, rather
than by positive legislation passed by both chambers, could prompt a legal challenge to that action’s
validity.
3. Question of the Privileges of the House
In rare cases, questions surrounding the representation of delegates in the House have given rise to a
question of the privileges of the House,
87
but in no case has such a proceeding been used to establish the
position in the first instance. These kinds of questions, which are put to the House in the form of a simple
House resolution, are “those affecting the rights of the House collectively, its safety, dignity, and the
integrity of its proceedings.”
88
Possible Legal Challenges to Seating a Cherokee Delegate
Should the House act to seat a Cherokee Delegate in the future, opponents to that action may consider
challenging it in federal court. Such potential challenges could include issues related to constitutional
guarantees of equal protection under the law, as well as other issues such as those related to justiciability.
The below discussion presumes that, if seated, the Cherokee Delegate would not have full voting
privileges, but might exercise many of the same privileges as territorial delegates.
89
House Minority Leader Bob Michel and other Members against the House Clerk challenging a 1993 House rule change allowing
delegates to vote in the Committee of the Whole).
84
U.S. CONST. art. II, § 2, cl. 2 (“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur”).
85
Id. art. I, § 8 cl. 18.
86
The Cherokee Nation “shall be entitled to a delegate in the House of Representatives of the United States whenever Congress
shall make provision for the same.” New Echota Treaty, 7 Stat. 478, 482, art. 7.
87
CRS Report R44005, Questions of the Privileges of the House: An Analysis, by Megan S. Lynch. For instance, in 1857, a
question of the privileges of the House arose in connection with the seating of a delegate from the territory of Utah at a time
when the territory appeared to be in a state of rebellion against the United States. A resolution set forth this question of the
privileges of the House. 54 H.R. JOURNAL, 35th Cong., 1st Sess., at 112–115 (1857); see also ASHER C. HINDS, 3 HINDS’
PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES § 2594 (1907).
88
Rule IX: Questions of Privilege, RULES OF THE HOUSE OF REPRESENTATIVES, 117th Cong. (2021), https://rules.house.gov/sites/
democrats.rules.house.gov/files/117-House-Rules-Clerk.pdf#page=10.
89
Conferring the Cherokee Delegate with full voting privileges could raise serious constitutional concerns. In 1993, some
Members of the House brought suit challenging a change to House rules enabling allowed delegates of the U.S. territories and the
District of Columbia to cast votes in the Committee of the Whole. See Michel, 817 F. Supp. at 134. The rule included a “savings
clause” providing that when a vote in the Committee was decided by a margin within which the delegates’ votes were decisive,
the issue was automatically referred to the full House for a vote in which the territorial delegates could not participate. Id. at 142.
The U.S. District Court for the District of Columbia stated that although it would have been “plainly unconstitutional” for
delegates to cast decisive votes in the Committee, the savings clause meant that, based on the record before it, those votes
ultimately “had no effect on legislative power, and ... did not violate Article I or any other provision of the Constitution.” Id. at
147-48. The U.S. Court of Appeals for the D.C. Circuit affirmed the lower court’s judgment, but identified the constitutional
question as whether the House rule improperly bestowed “the characteristics of membership on someone other than those ‘chosen
every second Year by the People of the several States’” in violation of Article I, § 2 of the Constitution. Michel, 14 F.3d at 630.
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Equal Protection Considerations
Legal challenges to seating a Cherokee Delegate could arise under the Constitution’s Equal Protection
Clause. Equal protection challenges in the federal Indian law context are particularly complex because of
the interaction of multiple constitutional and statutory provisions. As discussed above, Congress could
attempt to seat a Cherokee Delegate through congressional action such as enacting a statute. Such a
statute could prompt claims that Congress created a classification-based law or rule affecting voting
rights.
90
“[M]ost legislation classifies for one purpose or another, with resulting disadvantage to various groups or
persons,”
91
so the existence of a classification is not necessarily an equal-protection violation. To establish
an equal-protection claim, an aggrieved party must show it was “(1) treated differently from other,
similarly situated persons and (2) ‘that this selective treatment was based on an unjustifiable standard,
such as race, or religion, or some other arbitrary factor or to prevent the exercise of a fundamental
right.’ ”
92
If a law does not target a suspect class or burden a fundamental right, the law is to survive an
equal-protection challenge so long as “it bears a rational relation to some legitimate end.”
93
Potential challengers may argue that recognizing a Cherokee Delegate violates the voting rights
principle
94
known as the “one-person, one-vote” rule.
95
The Supreme Court has long held that once the
government grants the electorate the right to vote, the right must be exercised on equal terms.
96
The Equal
Protection Clause thus prohibits any voting restrictions that “value one person’s vote over that of
another.”
97
For example, the Supreme Court has held that the Equal Protection Clause prohibits the
“debasement or dilution of the weight of a citizen’s vote.”
98
Vote dilution refers to “the idea that each vote
must carry equal weight,” or that “each representative must be accountable to (approximately) the same
number of constituents.”
99
While the court suggested it would be “blatantly unconstitutional” to confer full voting privileges to the delegates, id. at 627, the
delegates’ voting authority was “largely symbolic” given the rule’s savings clause, and delegate participation in the Committee
was akin to the House’s longstanding practice of allowing delegates to serving on standing committees. Id. at 632.
90
The Fourteenth Amendment’s Equal Protection Clause prohibits state government actors from denying “any person within its
jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV. While the Fourteenth Amendment applies only to state
governments, the Court has analyzed federal equal protection claims under the Fifth Amendment “precisely the same” as those
brought under the Fourteenth Amendment. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975). These equal protection
provisions, according to the Supreme Court, require that “all persons similarly situated should be treated alike.” City of Cleburne,
Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
91
Romer v. Evans, 517 U.S. 620, 631 (1996).
92
Harvard v. Cesnalis, 973 F.3d 190, 205 (3d Cir. 2020) (citation omitted).
93
Romer, 517 U.S. at 631.
94
The Supreme Court has long held that the right to vote is “of the most fundamental significance under our constitutional
structure.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). Although states retain the power to
regulate elections, the federal government is constitutionally obligated “to avoid arbitrary and disparate treatment of the members
of its electorate.” Bush v. Gore, 531 U.S. 98, 105 (2000). Constitutional challenges to voting regulations are therefore often
brought and analyzed under the equal protection framework.
95
The Court has held that the Equal Protection Clause mandates “one-person, one-vote,” a concept originating in the 1962 case
Baker v. Carr, 369 U.S. 186 (1962); see also Evenwel v. Abbott, 578 U.S. 54, 59 (2016) (noting “Baker’s justiciability ruling set
the stage for what came to be known as the one-person, one-vote principle”). Voting rights jurisprudence has evolved since
Baker, raising questions as to when certain conduct complies with the one-person, one-vote principle and when these challenges
are justiciable.
96
Reynolds v. Sims, 377 U.S. 533, 554 (1964); Bush, 531 U.S. at 104.
97
Bush, 531 U.S. at 104–05.
98
Reynolds, 377 U.S. at 555.
99
Rucho v. Common Cause, 139 S. Ct. 2484, 2501 (2019); see also Reynolds, 377 U.S. at 590 (Harlan, J., dissenting) (“[T]he
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The circumstances surrounding the constitutional validity of a Cherokee Delegate present unique
questions that go beyond the traditional apportionment context. For example, according to some legal
scholars, the seating of a Cherokee Delegate may infringe upon the equal-protection rights of non-
Cherokee citizens in two different ways.
100
First, if only members of the Cherokee Nation vote for a
Cherokee Delegate to Congress, and such members are also residents of one of the 50 states, those
individuals could vote for both a full voting Member and a Cherokee Delegate, thus potentially giving
them a “super-vote”
101
and double representation in Congress. However, territorial delegates’ privileges
have been held not to be unconstitutional legislative powers because they cannot affect the “ultimate
result” of legislative votes.
102
The extent to which a Cherokee Delegate’s privileges are limited in the
same way as territorial delegates may bear on whether an unconstitutional “super-vote” is created.
Alternatively, if a tribal member were told to vote in either the election for a full voting Member or in the
election for the Cherokee Delegate, this could still result in a form of “super-vote” because non-Cherokee
voters would not have the same opportunity to “shop for the election in which their vote would be most
powerful.”
103
Thus, according to at least one commentator, “through the Cherokee delegate, non-
Cherokees would see their representational rights diluted.”
104
Some legal scholars suggest that the unique nature of tribal law and the historical context of the treaties
and past disenfranchisement practices toward Indians may factor into the constitutional analysis.
105
The
Supreme Court has upheld legislation that “singles out Indians for particular and special treatment”
against equal-protection challenges “[a]s long as the special treatment can be tied rationally to the
fulfillment of Congress’ unique obligation toward the Indians.”
106
Thus, the unique political status of
federally recognized tribes and their members—and, in this case, the unique situation of the Cherokee
Tribe and the provision it negotiated in the New Echota Treaty—may factor into a court’s analysis of an
equal-protection challenge.
107
A similar but distinct challenge could arise from other federally recognized tribes. If Congress were to
seat a Cherokee Delegate, other tribes may argue they are entitled to a tribal delegate under equal-
protection principles. For example, other federally recognized tribes may claim they are denied equal
protection under the law because members of the Cherokee Nation were granted superior voting and
representational power in Congress. These tribes may contend this results in arbitrary and disparate
treatment among Indian voters.
In analyzing such a challenge, a court would likely first determine whether the various tribes would be
considered “similarly situated,” because equal-protection principles require that similarly situated
Court’s argument boils down to the assertion that appellees’ right to vote has been invidiously ‘debased’ or ‘diluted’ by systems
of apportionment which entitle them to vote for fewer legislators than other voters, an assertion which is tied to the Equal
Protection Clause only by the constitutionally frail tautology that ‘equal’ means ‘equal.’”).
100
Rosser, supra note 14, at 145.
101
The Supreme Court has explained that the Equal Protection Clause “does not permit a small class of voters to be deprived of
fair and equal voting power,” but also forbids “the elevation of a small class of ‘supervoters’ granted an extraordinarily powerful
franchise.” Brown v. Thomson, 462 U.S. 835, 856 (1983) (Brennan, J., dissenting).
102
Id. at 148.
103
Rosser, supra note 14.
104
Id. at 146.
105
Id. at 149.
106
Morton v. Mancari, 417 U.S. 535, 554–55 (1974).
107
See Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 500–01 (1979) (“It is settled that
‘the unique legal status of Indian tribes under federal law’ permits the Federal Government to enact legislation singling out tribal
Indians, legislation that might otherwise be constitutionally offensive.”).
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individuals be treated alike.
108
Individuals are similarly situated when they are “alike in all relevant
respects,” but this does not mean “identically situated.”
109
In the case of the Cherokee Tribe, the
government arguably created a non-self-executing promise of a delegate through a treaty.
110
A treaty
between the United States and an Indian tribe is a “contract between two sovereign nations.”
111
Therefore,
it could be argued that successors-in-interest to the Cherokee signatories are not similarly situated to other
tribes because other tribes are not parties to the New Echota Treaty, so no equal-protection violation
exists.
112
In other equal-protection contexts regarding disparate treatment among Indian tribes, such as in the
federal tribal recognition process, courts have found that the recognition of Indian tribes is a political
rather than racial determination, and rational-basis review—rather than heightened scrutiny—applies.
113
When applying rational-basis review, a court must only find that “the classification rationally further[s] a
legitimate state interest.”
114
In this context, Congress might assert that it has a legitimate interest in
executing treaty provisions.
Ultimately, the recognition of a Cherokee Delegate is a novel issue, and one that cannot be easily
analogized to other existing equal-protection scenarios. As a result, current precedent cannot definitively
predict the outcome of such a challenge.
Justiciability
Even if a party raises an equal-protection claim challenging the constitutionality of the Cherokee
Delegate, a federal court would hear the case only if it determined that the challenge is justiciable.
Justiciability is a limitation established by the Supreme Court that refers to the types of matters a court
may adjudicate.
115
According to the Court, “it is the province and duty of the judicial department to say
what the law is”; however, some claims of “unlawfulness” are either more properly entrusted to another
political branch or involve no judicially enforceable rights.
116
These questions are more commonly known
as nonjusticiable “political questions.”
117
Since the Supreme Court’s 1962 decision in Baker v. Carr,
118
courts have debated the justiciability of
equal-protection challenges to the one-person, one-vote principle, finding some claims are “political
questions” beyond the reach of the federal court. In Baker, the Supreme Court first recognized the
justiciability of malapportionment claims.
119
There, the Court held that challenges to a Tennessee state
legislative map that had not been redrawn in nearly 60 years, despite substantial population growth and
108
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).
109
Harvard v. Cesnalis, 973 F.3d 190, 205 (3d Cir. 2020).
110
See supra pp. 8-9 (discussing ways the pledge made under the delegate provision of the New Echota Treaty could be
interpreted).
111
Washington v. Wash. State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675 (1979).
112
The U.S. Court of Appeals for the D.C. Circuit engaged in a similar analysis in the context of federal recognition, finding that
one tribe may not be similarly situated to others on the basis of government-to-government interactions. Muwekma Ohlone Tribe
v. Salazar, 708 F.3d 209, 215 (D.C. Cir. 2013) (applying rational-basis scrutiny).
113
E.g., Agua Caliente Tribe of Cupeño Indians of Pala Rsrv. v. Sweeney, 932 F.3d 1207, 1220 (9th Cir. 2019).
114
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
115
See generally Flast v. Cohen, 392 U.S. 83, 94–95 (1968) (explaining that justiciability is a “term of art” used to describe the
limitations placed on federal courts by the Constitution’s case-and-controversy doctrine).
116
Vieth v. Jubelirer, 541 U.S. 267, 277 (2004).
117
Id.
118
369 U.S. 186, 237 (1962).
119
Id.
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redistribution, was a challenge to the plaintiff’s equal-protection rights that was “within the reach of
judicial protection under the Fourteenth Amendment,” and a “justiciable constitutional cause of action.”
120
In so holding, the Court set forth six tests to help determine when a claim is a nonjusticiable political
question, including:
1. a textually demonstrable constitutional commitment of the issue to a coordinate political
department;
2. a lack of judicially discoverable and manageable standards for resolving it;
3. the impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion;
4. the impossibility of a court’s undertaking independent resolution without expressing lack
of the respect due coordinate branches of government;
5. an unusual need for unquestioning adherence to a political decision already made; or
6. the potential for embarrassment from divergent pronouncements by various departments
on the same question.
121
At bottom, the question often hinges on whether a claim is one involving a “legal right, resolvable
according to legal principles, or political questions that must find their resolution elsewhere.”
122
Beyond population deviations resulting in malapportionment, such as those presented in Baker,
123
the
Court has also found that claims of racial gerrymandering—or districting plans that unconstitutionally
diminish the votes of racial minorities—present a justiciable equal-protection claim.
124
Recently, however,
the Court determined that questions of political gerrymandering, or “[t]he practice of dividing a
geographical area into electoral districts, often of highly irregular shape, to give one political party an
unfair advantage by diluting the opposition’s voting strength,”
125
present political questions that are
beyond the reach of the federal courts.
126
According to the Court, the one-person, one-vote principle does
not extend to political parties or require that “each party must be influential in proportion to its number of
supporters.”
127
In a similar vein, although the separation of powers principle limits the justiciability of
challenges to House rules—and a court may not order the House to adopt any particular rule
128
—courts
nevertheless retain “responsibility to say what rules Congress may not adopt because of constitutional
infirmity.”
129
In sum, whether a court would find a challenge to the Cherokee Delegate justiciable may
depend on several competing considerations, including who brings the challenge and how it is
120
Id.
121
Vieth, 541 U.S. at 277 (quoting Baker, 369 U.S at 217).
122
Rucho v. Common Cause, 139 S. Ct. 2484, 2494 (2019).
123
Baker, 369 U.S. at 193–95. See also Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964); Reynolds v. Sims, 377 U.S. 533, 568
(1964).
124
Davis v. Bandemer, 478 U.S. 109, 119 (1986) (“Our past decisions also make clear that even where there is no population
deviation among the districts, racial gerrymandering presents a justiciable equal protection claim. In the multimember district
context, we have reviewed, and on occasion rejected, districting plans that unconstitutionally diminished the effectiveness of the
votes of racial minorities.”), abrogated on other grounds, Rucho, 139 S. Ct. at 2484.
125
Vieth, 541 U.S. at 271–72 n.1.
126
Rucho, 139 S. Ct. at 2484.
127
Id. at 2501.
128
Michel, 817 F. Supp. at 138.
129
Vander Jagt v. O’Neill, 699 F.2d 1166, 1173 (D.C. Cir. 1982).
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characterized.
130
For example, some matters involving treaties may preclude judicial review.
131
On the
other hand, courts sometimes “interpret . . . treaties and . . . enforce domestic rights arising from them.”
132
In United States v. Decker, the Ninth Circuit Court of Appeals held that the political question doctrine did
not apply in an equal protection challenge to regulations established pursuant to an Indian treaty.
133
Beyond treaty considerations, a court could also consider justiciability factors utilized in apportionment
cases. Under such an analysis, a court may find that a traditional one-person, one-vote question is
justiciable under basic equal-protection principles.
134
In Michel v. Anderson, the D.C. Circuit Court of
Appeals determined that a suit brought by House Members and private voters raised a justiciable claim
challenging House rule changes allowing territorial and district delegates to vote in the Committee as a
Whole,.
135
Conclusion
The treaty provision envisioning that the Cherokee may provide a delegate to the House is in some
respects a novel one, especially in the context of modern-day applicability. The historical background is
complex, and it is not perfectly clear what role such a delegate would have been understood to take in the
House. It seems likely that some action by Congress would be necessary if it desires to implement the
provision today. Ultimately, it is possible that legal challenges could arise if a delegate is seated—such as
whether seating the Cherokee Delegate may present equal-protection challenges—but it is unclear how a
court would decide the issues of first impression, or whether it would find the challenges justiciable at all.
130
The 1997 decision of Raines v. Byrd, which was issued after the D.C. Circuit’s decision in Michel, is likely to inform the
standing analysis of any potential legal challenge brought by Members of Congress. See Raines v. Byrd, 521 U.S. 811, 825
(1997) (holding that Member plaintiffs lacked standing to challenge an “abstract dilution of institutional legislative power”).
Even if a Member may otherwise have standing, courts have at times relied on the prudential doctrine of equitable or remedial
discretion to dismiss challenges to internal House matters brought by an individual Member when the Member could “obtain
substantial relief from his fellow legislators.” See Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999). The current applicability
of this doctrine is uncertain. See Campbell v. Clinton, 52 F.Supp.2d 34, 40 (D.D.C.1999) (observing that “the separation of
powers considerations previously evaluated under the rubric of ripeness or equitable or remedial discretion now are subsumed in
the standing analysis”).
131
See Ping v. United States, 130 U.S. 581, 602 (1889) (“The validity of this legislative release from the stipulations of the
treaties was, of course, not a matter for judicial cognizance. The question whether our government is justified in disregarding its
engagements with another nation is not one for the determination of the courts.”).
132
United States v. Decker, 600 F.2d 733, 737 (9th Cir. 1979).
133
Id. at 738.
134
See Rucho, 139 S. Ct. at 2496 (noting population inequality claims could be decided based on “basic equal protection
principles”).
135
Michel, 14 F.3d at 625-628 (deciding that the challenge did not raise a nonjusticiable political question, and that doctrines
counseling against adjudication of claims raised by Members did not apply to claims brought by private citizens). See generally
supra note 85 (discussing the Michel litigation).
