In the years following the 1835 ratification of the Treaty of New Echota, John Ross, the principal chief of the Cherokee Nation, had to lead a people suffering from the tolls of forced displacement. The treaty, which sold roughly seven million acres of ancestral homelands east of the Mississippi River to the U.S. government for $5 million, pushed Cherokee peoples westward from Georgia, Alabama, Tennessee, and North Carolina, marching along the Trail of Tears between 1837 and 1839. In the fall of 1838, federal troops rounded up and escorted approximately 16,000 Cherokees ahead of a four-month journey to modern-day Oklahoma, during which one in four émigrés died due to malnutrition, disease, starvation, and even physical exhaustion while battling the extreme winter weather.
Now, nearly two centuries later, the Cherokee Nation is trying to revive one of the few concessions its ancestors were able to secure in the Treaty of New Echota: the promise of congressional representation. “So many of my predecessors were trying to rebuild the Nation or keep us from dissolving in the face of great oppression and great obstacles,” says Principal Chief Chuck Hoskin Jr., who holds the same leadership title tracing back to Ross.
The treaty, authored after Andrew Jackson’s Indian Removal Act, stipulates that the Cherokee Nation “shall be entitled to a delegate in the House of Representatives in the United States whenever Congress shall make provision for the same.” A lesser-known trust obligation, it remained dormant until three years ago, when Hoskin tapped Kimberly Teehee to become the Nation’s delegate—despite any official authorization by the House to do so.
“My inspiration comes from trying to get a measure of justice for our ancestors, looking back at a treaty that did so much injury to the Cherokee people,” Hoskin tells me. “To be able to reach back and find something as powerful as representation in the House of Representatives is very important to me.”
A renewed public campaign to seat a Cherokee House delegate that launched in September follows years of “internal and behind-the-scenes efforts on this issue,” says Hoskins. The Nation and its leaders hope lawmakers will address their grievances in the final months before the end of this session, as Democrats fear losing their House majority following the 2022 midterms. “The stars are aligned right now. I think we’re seeing, in our lifetime, the most diverse Congress,” says Teehee. She’s hopeful that Congress will act swiftly during the lame duck session following the midterms, at least in terms of holding a House hearing on whether there should be a delegate representing the Cherokee Nation. And from there, it would only take a simple House majority vote to officially establish the position.
Teehee points out there are quite a few notable House leaders on both sides of the aisle who are seen as champions of Indian Country. Among Democrats, she highlighted Representatives Kai Kahele, a Native Hawaiian, and Alaska’s newly elected Mary Peltola, who is Yup’ik. For Republicans, there’s Representative Tom Cole, a member of the Chickasaw Nation of Oklahoma and co-chair of the Congressional Native American Caucus. Teehee tells me “all of Indian Country comes to him with their needs, even though he’s elected by the constituents in his district.”
Peltola’s historic special election victory in September marks the first time that an Alaska Native, Native Hawaiian, and Native American are all House members. It’s a memorable milestone, but Peltola still acknowledges there are plenty of obstacles to overcome throughout Indian Country as she faces reelection in November. “There are many examples of the government not honoring its word to tribes across the nation,” Peltola says in a statement, “and I will work tirelessly in Congress to ensure that does not happen again in the future.”
Puerto Rico, American Samoa, Guam, the District of Columbia, the Northern Mariana Islands, and the U.S. Virgin Islands each possess a nonvoting delegate. Like them, Teehee wouldn’t be able to participate in any House votes if she’s successfully appointed, but she still sees value in gaining “a seat at the table where only a few sit when it comes to making decisions, formulating laws and policies that affect us.” Her priorities wouldn’t be solely focused on Cherokees, but broader Indian Country by becoming a permanent Indigenous presence on Capitol Hill.
“Indian Country has too few champions in Congress, now, as it is, and on the shoulders of those few champions are all of Indian Country’s needs,” Teehee says. “But unmistakably, tribes universally have similar issues that impact them. I think there definitely is an opportunity for the Cherokee Nation delegate to be an advocate for all tribes, and that’s not unprecedented.”
The Cherokee Nation is largely an outlier, as only one other treaty plausibly offers a second tribe the right to congressional representation. David Wilkins, once a pupil of Vine Deloria Jr. and now an expert of U.S. treaty law as a University of Richmond professor, says two treaties explicitly reference tribal claims to delegate representation aside from ones forged with the Cherokee Nation.
Ironed out amid the Revolutionary War in 1778, the Treaty of Fort Pitt between the fledgling U.S. government and the Lenape contained a clause to essentially form a state that gained representation within the Continental Congress. “Within a decade after that treaty had been ratified, the Delaware had been forced out. They were fragmented and divided,” says Wilkins, a member of the Lumbee Nation of North Carolina. “It was years before they were ever able to regain a footing and reestablish a new homeland, so I think that’s just sort of a dead letter.”
The Choctaw Nation of Oklahoma’s Treaty of Dancing Rabbit Creek in 1830 presented visionary language, suggesting “the privilege of a Delegate on the floor of the House of Representatives extended to them,” only for that request to be denied and left open-ended for Congress to ultimately “decide the application” at a later date. “I have wondered why the Choctaw haven’t pushed that more often,” Wilkins says, “especially now with the Cherokee getting all this attention over their delegate provision.”
Ironically, the signing of the Treaty of New Echota, by all accounts, was a historically fraudulent one. Wilkins tells me “it never should have been negotiated, ratified, or proclaimed” since no consensus had been reached by the Cherokees and “the elected leadership led by John Ross did not approve of it.” However, that treaty and the Nation’s entitlement to a delegate is still honored today. Interpretations of federal law stipulate that once a president ratifies treaties, they officially become the law of the land regardless of whether either party fraudulently conducts them. It’s a principle that “has both helped and harmed us across time,” according to Wilkins.
That checkered history behind the treaty itself, coupled with the Cherokee Nation siding with the Confederacy following its secession from the Union, still didn’t diminish their rights. The Treaty of New Echota was never abrogated by the U.S. even after the Civil War ended. Last year, the Committee on House Administration tasked the Congressional Research Service to review the issue, says a senior Democratic aide. Its findings were released in a July report outlining that complicated history, with Teehee adding it “affirms that the treaty right is still alive and in effect, but never abrogated.”
That same report also raises a series of potential legal and procedural obstacles, emphasizing the equal protection clause and how “other tribes may argue they are entitled to a tribal delegate under equal protection principles.” Although there are 574 federally recognized tribes, only three of them may attempt to claim House delegate representation through explicitly written trust obligations.
“No treaties between two sovereigns are exactly alike,” Teehee says. “It is compelling to say that this contract between two sovereigns doesn’t violate equal protection.”
Both Wilkins and Ezra Rosser, a professor at American University’s Washington College of Law, essentially agree with her legal assessment. Although Rosser suggests it “should answer” any challenges stemming from the equal protection clause, he doesn’t attempt to downplay the possibility of political tensions emerging if the House approves their request for a Cherokee delegate. “Absolutely, other tribes could be nervous that this representative would prioritize Cherokee over their own interests,” Rosser says. “I think that is a very valid concern that other tribes could have.”
The Cherokee treaty’s delegate provision, coupled with the Supreme Court’s recent McGirt v. Oklahoma decision—which ruled that eastern lands from the Muscogee Creek Nation’s reservation were never disestablished—has broadened and bolstered the political power of the state’s Five Civilized Tribes: Choctaws, Chickasaws, Creeks, Seminoles, and Cherokees.
“We are in a position of relative strength, both politically and economically, to be able to put our focus on this treaty provision,” Hoskin says. “It’s our duty now that we’re in a period of relative strength and prosperity to do what they surely would have done had they been in a position to do so.”
The McGirt decision and the Treaty of New Echota’s delegate language align with Hoskin’s common goal for Indian Country “to achieve a win in asserting any single treaty provision.” But lawmakers aren’t obligated by any congressional mandates to act before the end of this current session. Still, a simple majority vote in the House will suffice the requirements to successfully approve the Cherokee Nation’s campaign for a delegate seat in Congress.
“If they try to undermine the validity of this treaty, you can’t accept the treaty when it’s convenient for you, as it most certainly was for the U.S., and then reject it when the other side is trying to call upon one of the few remaining provisions,” says Rosser. “If the U.S. is unable or unwilling to live up to the promise, there should be compensation. With this promise, they’re in a position to assert that history still matters, and they have the leverage to do that.”
The National Congress of American Indians also remains committed to their cause. Ryan Seelau, policy lead on legal and governance, tells me that “NCAI continues to call upon the House of Representatives to fulfill its obligation” and “fully supports the exercise of tribal treaty rights.” Its official position has remained consistent since NCAI released a resolution shortly after Teehee’s appointment, Seelau says, applying to all rights for delegate representation, “including, but not limited to, the Cherokee Nation.”
“We’re blessed that we have a supportive National Congress of American Indians,” says Teehee, adding there’s widespread support among tribal organizations both in and out of the nation’s capital. And yet a sense of heightened urgency has swept over Washington since this congressional session will come to a close at the beginning of January. Hoskin says he and Teehee “built a lot of good relationships on a bipartisan basis,” and remains optimistic that a House hearing will be scheduled sometime in November.
“We’re mindful that the Senate and president have acted, albeit in the nineteenth century,” says Hoskin. “You only need a resolution from the House, which should come on the heels of what I think will be a successful hearing.”
Another Democratic aide tells me that the House Rules Committee “plans to hold a hearing on this soon,” but the Cherokee leadership isn’t holding its breath either.
“We know that all of the efforts we’re undertaking now take place against a backdrop of centuries of broken promises, but I’m optimistic that we’re in a different era,” says Hoskin. “I think we’ll be successful, but if we’re not in this Congress, it’s not the end of it. We just have to continue to make the case.”
