Professor provides insight on Cherokee congressional delegate issue
Kimberly Teehee and Principal Chief Chuck Hoskin Jr. stand in front of the Cherokee Nation Courthouse Museum after it was announced on Aug. 22 in Tahlequah that Hoskin is nominating Teehee as a delegate to the U.S. House of Representatives. COURTESY
PADUCAH, Ky. – In August, the Cherokee Nation named Kimberly Teehee as the tribe’s delegate to the U.S. House of Representatives, enacting a 184-year-old treaty provision that the tribe had yet to enforce.
The congressional delegate provision is outlined in two CN treaties with the U.S. government – the 1785 Treaty of Hopewell and the 1835 Treaty of New Echota.
During a recent presentation at the annual Trail of Tears Association conference, law professor Ezra Rosser said the CN has a right to have a congressional delegate. He said he started studying the issue in his second year of law school after it was assigned to him.
“There was no real direction, but fortunately, and this is true for a lot of Indian law, the U.S. government kept very good records of how it mistreated different groups, and so it kept records of the treaty negotiations. The U.S. government likes to record its misdeeds,” he said.
Rosser added that Teehee has experience working in Washington, D.C., because she is a former adviser to President Barack Obama.
Rosser graduated from Harvard Law School with a juris doctorate in 2003 after earning a bachelor’s degree from Yale in 2000. He has been part of the American University Washington College of Law faculty since 2006 and his articles have appeared in numerous law journals.
He said he is glad the CN is pushing for its delegate right.
“We don’t know what’s going to happen with it, we don’t know where it will end, but I think there’s value in the push even if it ends poorly,” he said.
He said the U.S. government will resist to recognize this right. However, Article 7 of the Treaty of New Echota states, “the Cherokee Nation shall be entitled to a delegate in the House of Representatives of the United States.”
“We have to understand the controversies involved in the negotiation and the history of that negotiation in order to understand what the promise is about, and once we understand what the promise was about at the time, we have to think about what it means today,” he said. “What it means today is part of a reflection of what the Cherokee Nation has decided, which is to push for a non-voting delegate and to put forward a person on their own initiative, but we won’t really know what it means today until Congress reacts to that.”
The Treaty of New Echota was signed during a power dispute, Rosser added, and only a minority of Cherokee men signed the document without the consent of the tribal government and Principal Chief John Ross.
“The United States government treated this is a valid treaty. They got the state of Georgia as well as other lands,” he said. “There was a position among non-Indians that this was an advantageous treaty for the Cherokees. The Cherokees resisted that through the Cherokee Phoenix. The language in the Phoenix was: ‘Let’s first have the United States live up to their existing treaties, and then we will consider a new treaty.’”
Another challenge for the treaty was the question of who should negotiate it.
“The one answer, of course, was the Cherokee people should negotiate that treaty,” Rosser said. “Another answer is the existing (Cherokee) government, and the third is the subset (Treaty Party) who were amiable to removal. In the end, the treaty was negotiated with the subset amiable to removal. It’s worth making the obvious point that this is not how we (U.S.) typically deal with nations. If the government of Egypt said they wanted to negotiate a treaty with the United States, and said ‘Ezra, will you negotiate on behalf of the United States?’ I am not empowered to do so.”
The U.S. government took advantage of internal disputes among CN leaders, Rosser said, that included those who supported Ross, who wished to remain on Cherokee lands, and those who supported the Treaty Party led by Major Ridge, who believed the CN was better off selling what remained of its land in the east and moving west.
Rosser emphasized “language matters” in treaties. “If you’re a tribal member negotiating this agreement with the United States, and they come at you with a new treaty, you’re going to want it to say delegate and that’s what they got. Even though this was treated by the Supreme Court as not the same as a delegate right, the fact that it exists and had the response by the Supreme Court…a response to the treaty adds to the claim by the Cherokee Nation that they have this delegate right.”
The most significant part of the treaty promise, Rosser said, is that it was “a bargain for exchange.”
“Here we have a treaty promise that has not been tested, and that treaty promise was held out to be the single most important part of the Treaty of New Echota,” he said. “There was awareness on the United States side that this wasn’t just empty language. This was a significant promise that was being made.”
Interpreting the significance of a non-voting delegate, Rosser said, “non-voting delegates actually have a lot more authority than you might expect.”
“Depending on which party is in control, the non-voting delegate has significant authority,” he said. “In particular, when Democrats are in control they usually give more authority for the non-voting delegate to vote in the committees provided that the non-voting delegate vote is not determinate. So a non-voting delegate for many practical purposes can function very similar to a voting delegate.”
If the U.S. government blocks the CN from having a delegate, what does the tribe get in return? Rosser said Ross was willing to sell remaining Cherokee lands for $20 million during the 1835 negotiations, but the CN was forced to sell its lands for $5 million, with the inclusion of a delegate to Congress.
“One way to think about this right, if we’re going to say it (delegate) isn’t valued, then maybe you owe the Cherokee Nation the difference, $15 million. With inflation today that is about half a trillion dollars,” Rosser said.