When most people think of the House of Representatives, they likely think of the 435 members who are elected every two years to serve in its ranks. Often overlooked are the House’s six nonvoting delegates, who can’t cast final votes on legislation but can introduce bills and join committees. They consist of the resident-commissioner of Puerto Rico, who serves a unique four-year term, and the delegates of American Samoa, the District of Columbia, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands.
Aside from the constitutional oddity of D.C., nonvoting delegates come from the periphery of the American empire of the late nineteenth and early twentieth centuries. It is thus fitting that a seventh member could soon join their ranks. The Cherokee Nation of Oklahoma is hoping to seat a delegate of its own by invoking a provision in the Treaty of New Echota, an 1835 agreement between tribal negotiators and the U.S. government that set the stage for the Trail of Tears.* For both moral and practical reasons, seating a tribal delegate in the House could only improve that body.
A renewed push from Cherokee leaders has raised the question’s profile in Washington. “Our ancestors upheld their end of the bargain—after being forced to leave their homes and march to the west, a quarter of our tribe (4,000 men, women, and children) died on what history knows today as the Trail of Tears,” Chuck Hoskin Jr., the principal chief of the Cherokee Nation, wrote in a letter to House leadership this week. “Yet, two centuries later, the U.S. House still has yet to seat the delegate we were promised.”
Seating a Cherokee delegate would be unambiguously constitutional. The 1835 treaty, like all such treaties ratified by the Senate, is part of the binding law of the United States. While the treaty does not specify the delegate’s voting status, the Constitution limits legislative power to representatives elected “by the People of the several States.” Nonvoting status also avoids potential violations of the “one person, one vote principle,” since members of the Cherokee Nation also cast ballots in Oklahoma’s congressional elections and in other states where they reside.
Such a provision may be unusual by modern standards, but it reflects the fluidity of American constitutional structures in the early republic. In 1778, the Continental Congress forged its first treaty after independence with what it called the Delawares—a Lenape tribe living near the Delaware River in what is now New York and New Jersey—who had moved beyond colonial borders into present-day Ohio. That treaty included a provision stating that “should it for the future be found conducive for the mutual interest of both parties,” the tribe and others in its confederation could one day “form a state whereof the Delaware nation shall be the head, and have a representation in Congress.”
Those promises never came to be. American settlers in the Ohio Territory, sometimes backed by force and violence, pushed the tribe further west until their descendants settled in Ohio. Removal policies would characterize much of national policy toward the tribes in the nineteenth century, with the Trail of Tears perhaps the most well-known and infamous example. The federal government used the Treaty of New Echota as the legal basis to forcibly relocate almost all of the Cherokee, along with other tribes in the Deep South, from their ancestral lands to the Indian Territory in present-day Oklahoma.
While the treaty led to one of the darkest chapters in American westward expansion, it also continued to put forward the idea of a tribal voice in Congress. Among its provisions was one that “stipulated 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.” The treaty justified that promise by claiming the tribe had “already made great progress in civilization” and stated that “every proper and laudable inducement should be offered” to the tribe to relocate. It also praised, somewhat ironically, “the liberal and enlarged policy of the government of the United States towards the Indians.”
That provision lay dormant for more than 180 years. Neither Congress nor the Cherokee Nation, the largest of the federally recognized Cherokee tribes, appears to have taken steps to seat a delegate in the intervening time. Only in 2019 did the tribe push in earnest to have a delegate seated, with Hoskin and the Cherokee’s executive committee naming Kimberly Teehee to the seat that year. While the seat is assigned to the Cherokee, Teehee indicated she would represent tribal voices in general in the House.
“It’s imperative that we elect people to Congress who have at least some foundational knowledge of Indian tribes and have a willingness to fall on the sword to protect the legal relationship that the tribes have with the United States,” Teehee told my colleague Nick Martin in a 2019 interview. “When we don’t have those champions in Congress, then we see bad policies. And the victims at the end of the day are the people in our communities.”
That voice may be increasingly important for Congress to hear. Within the last few years, the Supreme Court has handed down some of the most momentous decisions on tribal sovereignty in at least a generation. In McGirt v. Oklahoma, the justices said in a 5–4 ruling that Congress had never formally disestablished the reservations of the Five Civilized Tribes in Oklahoma and that roughly half of the state was still Indian country. The ruling had major implications for civil and criminal law in Oklahoma, infuriating state leaders who claimed the court had dealt a serious blow to its governance. (The tribes obviously disagree.)
A follow-up case, Oklahoma v. Castro-Huerta, saw the Supreme Court take a sharp turn. The state argued on highly dubious legal and constitutional grounds that it could exercise criminal jurisdiction on tribal lands without the tribes’ assent. In another 5–4 ruling, the justices said this time that Oklahoma—and, by extension, other states—could prosecute a wide range of crimes committed on Indian territory alongside the federal government, reversing almost two centuries of precedent on tribal sovereignty. Justice Neil Gorsuch, in a thunderous dissent, wrote that Justice Brett Kavanaugh’s majority opinion was so detached from law and reason that it ranked among the court’s worst decisions of all time.
Yet another major case looms on the horizon this term. In Brackeen v. Haaland, the justices are hearing the most sweeping legal challenge to the Indian Child Welfare Act, also known as ICWA, since its passage in 1978. ICWA generally requires that Native American children be placed with members of their own tribe or with members of another tribe when possible in adoption and foster-care proceedings. Congress passed the law to end the practice of forced removals of Native children from their homes and placement with non-Native families, which had often separated them from their cultures and threatened the tribes’ long-term existence.
A House delegate with experience and interest in tribal affairs would be a boon to the chamber if the Supreme Court partially or wholly overturns the law and further legislative action is needed. While some lawmakers have an interest in tribal affairs, it is rarely a high priority on the legislative agenda. In his dissent in Castro-Huerta, for example, Gorsuch took the unusual step of writing out the exact legislative language that he said Congress would need to pass to reverse the court’s erroneous ruling. No House member introduced a bill to that effect in the previous Congress or the current one.
Beyond the practical benefits, it is also a matter of national honor. A basic principle of America’s treaty power is that it will uphold the obligations to which it agrees. That forms the basis of everything from trade relations with Canada to collective defense with European powers in NATO. History abounds with instances where American leaders negotiated with tribes in bad faith, robbed them of their lands, and ignored the treaties they had made. By seating a Cherokee delegate in Washington’s halls of powers, Congress can, if nothing else, finally uphold a nearly two-century-old promise.
* This article originally misidentified the name of of the treaty.