Congress

After 184 years, Cherokees seek House delegate seat promised in treaty

Move poses technical and moral questions, including whether Cherokees would get ‘super vote’

Kim Teehee (courtesy Cherokee Nation)

Kim Teehee was an intern combing through dusty archives when she first learned of a largely forgotten agreement between her Cherokee tribe and the federal government.

More than 25 years later, that document has placed Teehee at the center of a historic reckoning of the way Congress treats Native Americans, while raising questions about what representation in Washington really means.

It was a treaty, ratified by the Senate and signed by President Andrew Jackson in 1835, granting the Cherokee Nation a delegate to Congress.

Teehee was named to that post in September by the tribe’s chief, Chuck Hoskin Jr. The move set off a series of technical and moral questions for leaders in Congress, who are now tasked with determining whether — and how — to allow her to take her seat.

[Cherokee Nation prepares vote on its first congressional delegate]

“I think we are ready for this,” Teehee says. “I have not had a conversation with anyone who said, ‘We don’t want to do this.’ It’s, ‘How do we get it done, and how do we do it right?’ ”

Decades of activism

A generation ago, congressional leaders might have ignored or flat out rejected claims from the Cherokee Nation to a delegate, adding to the federal government’s long history of breaking agreements with Native Americans.

But decades of activism has increased Native American political clout. It paid off in the 2018 election of Democratic Reps. Deb Haaland of New Mexico and Sharice Davids of Kansas, the first Native American women in Congress. And in August, 11 presidential candidates appeared in Iowa for the first-ever Native American presidential forum, a courting of indigenous votes that was unheard of decades ago.

Teehee and political leaders from other tribes say the response to the Cherokee Nation will be an important indication of how serious tribal rights are to elected officials.

“We native nations have given up millions of acres of land in exchange for certain rights and promises,” says Wizipan Garriott Little Elk, who served as a Native American outreach director for Barack Obama’s 2008 presidential campaign, one of the first national campaigns with such a position. “We’re still waiting for the United States to honor their word.”

But even advocates acknowledge it is not totally clear how Congress could uphold its part of the bargain. The Cherokee treaty is the strongest claim any tribe has to a congressional delegate. But the document does not lay out how such a position would be created, saying simply that the Cherokee Nation is “entitled” to a delegate “whenever Congress shall make provision for the same.”

A Cherokee delegate would be the first seat in Congress of its kind since it would cover geographical territory that’s already part of two congressional districts. It raises complicated legal questions, starting with whether the treaty is still valid. Others include whether the Cherokee Nation have more of a right to a delegate than other tribes.

Cherokee Map-01

Those are important issues to address, Teehee and Hoskin said. But they aren’t deal-breakers.

“Our view is that, just because it is an anomaly and unprecedented, that doesn’t mean it isn’t doable,” Hoskin said.

Delegates wield similar powers to full House members, with a notable exception: Most times, they can’t vote on the House floor. They can speak and introduce bills and resolutions, offer amendments and most motions, and vote in committee.

Teehee, 51, has a resume — law school, Hill staffer, Obama administration — that reads as if she has been building to this point for most of her life. But she says that’s not the case.

Rather, she is part of a generation of Native American activists who came of age when their communities were waking up to their political power.

Teehee’s internship was with Chief Wilma Mankiller, the first woman elected to lead a major Indian tribe. Mankiller had a deep interest in history and was constantly sending Teehee to the tribe’s archives to pore over treaties, Teehee said.

It was through that work that Teehee first learned of the tribe’s right to a delegate in the 1990s. 

Shortly after that, in 1995, the journal American Indian Law published an article about the treaty. The author, Jack Blair, had been an intern at the Cherokee Nation Department of Justice.

Hoskin says that article came up during the tribe’s constitutional convention in 1999, where Hoskin, a young law student at the time, served as a delegate.

The document the tribe drafted that year, and enacted in 2003, officially set up the office of a congressional delegate, stipulating that he or she would be appointed by the principal chief, confirmed by the council and, “upon recognition by the United States shall be seated in accordance with federal law.”

It wasn’t until Hoskin became chief, in August, that acting on the provision became a priority for the tribe, he said.

Forced removal, then reservations

The Treaty of New Echota set up the legal framework for the forced removal of the Cherokee people from land east of the Mississippi, an event that became known as the Trail of Tears.

As many as 4,000 Cherokees are thought to have died as a result. What followed was more than a century of encroachment on Indian tribal rights.

Tribes were consolidated on reservations, their children forcibly sent to boarding schools, as the federal government routinely ignored provisions of more than 350 treaties.

It wasn’t until the Indian Self-Determination and Education Assistance Act of 1975 that native nations began to take over their own governments. Subsequent legislative reforms ushered in a new era of economic and political power.

In recent weeks, Teehee and Hoskin have spent much of their time answering questions about the tribe’s legal rights. They spent 45 minutes going over historical and legal precedent with Speaker Nancy Pelosi and her staff, they say. Pelosi’s office did not respond to a request for comment.

They also have met with Oklahoma Reps. Tom Cole and Markwayne Mullin, who are both Native Americans. Indeed, Mullin is a citizen of the Cherokee Nation. They are also Republican, putting other tribal issues in play, since Teehee is a Democrat. Teehee says partisanship is not an issue and both congressmen have been their champions on past issues.

“While I have not fully reviewed the 1835 treaty language and subsequent treaties that might impact the claim, I take any case the Cherokee Nation makes seriously,” Cole said in a statement. “There’s no question they have a legitimate case to make.”

Delegates predate Constitution

There is no perfect model for what they are proposing.

The office of territorial delegate predates the Constitution, and there are six currently serving in Congress. The most recent, from the Northern Mariana Islands, was seated in 2009. But they all represent constituents living in defined geographic areas.

The Cherokee Nation is located in Oklahoma, where residents are represented by the same congressional delegation as their non-native neighbors. Its 370,000 citizens are spread across the country. That creates a potential constitutional challenge that the new delegate would give extra weight to Cherokee Nation citizens’ votes — a so-called “super vote.”

Hoskin described the Cherokee delegate as more of an ambassador, who would represent the business interests of the tribe, not individual constituents.

There is also a question of what action Congress would take to create the post.

Legal experts say that it could be through a bill passed by the House and Senate and signed by the president. It also could be written into the House rules by the majority party, making it a temporary provision that would have to be repeated every two years when a new Congress is sworn in.

Or, because the treaty was ratified by the Senate and signed by President Andrew Jackson, the tribe could argue that it would only take a designation from the speaker of the House to make the post permanent.

Teehee and Hoskin say those are important issues to address, and they acknowledge it will probably take time to come to an answer.

But after more than 180 years, they are willing to wait a little longer to get it right.

Eleanor Van Buren contributed to this report.Correction 9:59 p.m. | An earlier version of this story misstated the state where the Native American presidential forum took place in August. 

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