…as long as it isn’t Elizabeth Warren, of course.
Citing treaties with the U.S. government signed in the 18th and 19th centuries, the new elected chief the Cherokee Nation is insisting that the tribe get a delegate to Congress for the first time in history.
“These treaties are sacred. They mean something. There’s no expiration date on them,” said Chuck Hoskin Jr., chief of the Cherokee Nation. What I’m asking is for the government of the United States to keep its word.”
You mean, unlike with all those other treaties the U.S. signed with Native American tribes? What’s this? Have you no respect for precedent, man?
Charles Gourd, the director of the Cherokee National Historical Society, told the news media that he and others had wondered why no Cherokee Nation delegate had ever been seated in Congress despite assurances to that effect. He can’t be serious! If a delegate were finally seated, he and others might then wonder why that provision of a treaty was honored while so many others were breached or ignored at will.
The right for the Cherokee to send a “deputy” to represent them in the United States Congress was first assured by the Treaty of Hopewell of 1785, which defined Cherokee borders and promised certain protections in return. The right to send a “delegate” to the House of Representatives was specified affirmed in the 1835 Treaty of New Echota. The House has several nonvoting delegates, representing Puerto Rico, the District of Columbia, Guam, American Samoa, the Northern Mariana Islands and the United States Virgin Islands.
There are some logical and legal hurdles to giving the Cherokee a voice in the House, even though it is the only tribe with a treaty to support its claim. Other tribes, and there are a lot of them, would cry foul. There is also the question of why it has taken so long for the tribe to formally seek to have the U.S. live up to that part of the treaty. “We’ve talked about it, yes, but we hadn’t done anything about it because there were other things that had to be done to get to this point,” says Gourd. “In a real sense there was not a fully functioning government and there have been some growing pains. I think this is a measure of the maturity of our tribal government.”
That’s fine, but the first thing that jumped into my head when I read about this was laches, the legal doctrine which holds that if a party doesn’t assert a legal right or remedy for an unreasonable amount of time for good reason, that right or remedy no longer exists. “We just never got around to it” doesn’t have the ring of a persuasive excuse. Maybe laches doesn’t apply to treaties.
It shouldn’t matter, though. Not only should the Cherokee be represented in the House, they, like the District of Columbia (but not the others) should be voting members. It would be a step toward justice for Native Americans, an acknowledgment of their neglected rights, and as with ending the anomalous lack of meaningful Congressional representation for residents of D.C., it is the right thing to do.
Isn’t it? Here’s a poll:
Ethics Alarms 
It would require a constitutional amendment.
It will be a long campaign.
Yes, but we need one for the District anyway. Two birds with one stone.
The day the democrats hold 3/4 of the state legislatures is the day such an amendment passes. Until then, fat chance. The republicans aren’t going to give away two seats. About the only way that happens is if a reliably republican state is created to counteract, say by creating the state of Jefferson.
Boring legal jargon intro:
Laches may not apply. Particularly for treaties or contracts. It is an equitable defense (and probably requires some showing of prejudice, but I am not certain offhand), but I get the point.
If the treaty let’s them send one, they should be allowed.
If voting requires an amendment, they should not be allowed to vote unless the amendment is passed. However, on that issue, I take no position.
But, would they have an electoral vote, then?
-Jut
Depends on the nature of the Constitutional amendment.
The reason non-voting delegates are permitted is because thry do not vote; they are practically legislative advisors.
Congress could theoretically allow France, Israel, or Nigeria a non-voting delegate.
In the interest of integrity, sure. DC also.
This has been the sticking point all these years, as you know. They would be automatic votes in the D column.
DC should be treated like a lot of federal positions. When I was in the army, despite my assigned post, I had to declare a state of residency.
DC was never intended to be a place where people came and lived their whole lives. And I don’t think people collected in a single place who are beholden to increasing the size of government to make their lives better should be rewarded with collectivized voting power.
They don’t get to vote every 2 years for a representative within whose district they live?
That’s a very interesting question, isn’t it. Unlike the others listed, the Cherokee do get to vote for a member of the house based on their district.
I wonder if they have enough members to consume the majority of a house district? A gerrymandered district with a Cherokee majority would give them a vote too.
I know of some legislative districts out west that were drawn to follow tribal boundaries, so that tribes with conflicting interests had separate representation. I do not know if the tribes form a majority in either district, however.
They have a vote. Every Cherokee who goes to the polls has a vote. This notion that members of an ethnic group are duty bound to vote collectively will destroy this Republic…and the notion has been put into destructive practice with several ethnicities for generations. And one side of the political aisle actively teaches members of ethnicities to think this way.
Terrifying.
(Whatever a “Cherokee” even is. The last several “native americans with tribal affiliations” I’ve seen were all interviewees on TV and had minivans in the background with soccer bumper stickers and had more in common with their immediate neighbors than with any notion of what a “Cherokee” is. For the vast majority of people claiming a tribal affiliation, my gut instinct is that they have just as much notion of themselves derived from the tribe as a modern descendant of an Irishman or a German…or an Irish-German-Italian-Japanese descent American…)
had minivans in the background
Are you sure those weren’t pow wow vans?
I feel stupid. Am I missing a cultural reference?
Now if Cherokee lands are included in district gerrymandering, do they already have voting control of some districts? Then, I don’t think they should get a rep, especially a voting one on top. Then they would have two reps in congress, one by geography like everyone else, plus one by special ethnic group. which could be a terrible new precedent to all other SIGs out there. Imagine the voting block for left handed women whose grandparents came from Greece and Bolivia! Congress would swell to 2000 reps and get even less done, it may already be too big. They take the risk we all take for a rep that speaks for us by geography.
The treaty promised rep becomes simpler if and only if their lands have not already been included in existing districts by population and geography. Then they should get the rep posthaste. The rep might not have a contiguous district which also raises issues.
Then there’s another question can ethnic divisions mesh with geographic ones at all? That’s not the big-state small-state the 2 house congress was to address. And do the Cherokee have to live in tribal land to count for votes? what happens if the tribe buys a huge farm in the Dakotas, do the existing districts lose the land? What if they bought a Caribbean island? What about Indians who live in DC or NYC?
If they had gotten the rep in 1835 when tribal lands were bigger and settlers sparse, areas larger than some states, a rep was fair and made sense. The cultures were not interspersed and even interrelated. It may not have been fair but I don’t think we can uncrack the egg. I now wish i could change my vote, every other minority or oppressed group would expect the same special treatment, making it even more identity/tribes than now. They deserve an apology, they should have had that rep and more before assimilation made jobs and success outside indian lands. But any congressional rep should be a non-voting lobbiest, or minority groups will be too busy demanding their own special rep to bother negotiating and accomplishing anything.
“What happens if the tribe buys a huge farm in the Dakotas, do the existing districts lose the land?”
Tribes, like any corporation, can own land. However, mere ownership of land does not transfer sovereignty. That could only be done, constitutionally, with the consent of the state legislature.
In Connecticut, we have two tribal nations. The tribes do not technically own the their reservation land, rather it is held in trust by the United States. The tribe do, however, own various hotels and golf courses off the reservation, which are subject to state and local laws like any other land. I would image the Cherokee land is similarly held in trust.
Excellent points I hadn’t considered. Well done.
jvb
“If they had gotten the rep in 1835 when tribal lands were bigger and settlers sparse, areas larger than some states, a rep was fair and made sense. The cultures were not interspersed and even interrelated. It may not have been fair but I don’t think we can uncrack the egg.”
Bingo.
And we also had these cool divisions centered around culturally distinct entities in the early nation that received representation in a legislative body. They were (and are) called States, and they got Senators. That would have been the only ethical solution for natives long long ago.
But that ship has sailed. Given that the vast majority of Native American descendants are for all intents and purposes, fully integrated in modern society, they get what the rest of America gets, Representatives in whatever district they reside.
“Congress would swell to 2000 reps and get even less done, it may already be too big.”
To the contrary. The House needs to be bigger…maybe even 4 times as large. Everyone who complains about gerrymandering and everyone who complains about how expensive it is to run for Congress and everyone who complains about how easy it is for “big donors to ‘buy’ representatives” are really all voicing the same essential complaint:
The House of Representatives is no longer representative. Where are we currently? About 1 rep per 750,000 people? What a sham.
I don’t care if there are several thousand representatives, each individual representative would be MORE accountable to their constituents, MORE ‘ordinary joes’ could run for office, with big donor support being equally dispersed each seat is more ‘monetarily competitive’.
I don’t think it would significantly cause the system to slow down…not every representative engages in debate now.
It will generally solve the gerrymandering problem (which will perennially raise it’s head).
The only other problem in Congress then would be the Senate, because our States are too big (yes, we should subdivide the crap out of them).
Fun trivia, if you add up ALL the sizes of the State Houses and divide the US population by that number, you get an average representation of about 1 rep per 60,000 people (granted some states have greater rep to person ratio and some have less).
I do agree some states, are too large. If the Constitutional Convention debated small state vs large state, they never wouldhave fathomed mega states with economies and inclination to barrel over the other kids in the pool. But even splitting them becomes a problem as the baby californias would have more votes in congress. Conservatives are stronger in fly pver states so they can’y be split to any eye for population balance. I also doubt people with attachment to their state would be convinced to approve.
I know my impressions are based on fction, but inertia gets worse as a committee gets bigger. The European Parlement isn’t notably wiser or responsive to smaller populations.
How granular do you want this to get? A thousand per rep would not only bloat cost and sluggishness but some reps would become even more mob leaders. The world is too big to have a rep know his people, the ‘knowing’ limit of memory and interaction is already below that thousand. More sounds good, but if 500 congresscritters is knowable 2000 is not.
And again there aren’t enough checks on the herd for any or every minority, for every small state. I don’t think changing the way to handle the failing checks and balances on populous behemoths is adding more of the same broken metaphor. I believe more states by population* and more reps would make the scaffolding fall faster.
* I do think 2-3 more states might help with outsized influence, but like the Missouri compromise to give to both sides, isn’t a long term answer for long term issues. I can’t say I want my state to change shape, splitting states would become a massive gerrymander. my state the flyover counties would get lost to the interests of the ends.
We need working checks and balances in the first place, not redrawing the field.
Thank you, Michael. Beat me to it. Having lived on both the Navajo and Hopi Reservations (called “The Res” in both places), yes, they do, if they are registered voters. As far as I know, the Navajos are the only ones who claim “Sovereign Nation” status. This claim is not backed up by either 25 USC or by treaty.
Not unless we change the Constitution to divide representation up along ethnic lines. That would be a friggin disaster. Too much identity politics as it is now why add to the problem.
I agree with this.
Until white, black, Hispanic and other ethnicities can become Cherokee, or at least vote for their representative, I say their voting representation is encumbered by more than one constitutional provision. The same may be true of Guam and Puerto Rico.
Also, all these territories would have to become incorporated territories of the United States to have voting membership. As it is, only certain parts of the U.S. Constitution apply to them.
There is no sovereign “Cherokee land” per se, outside of a small reservation that the Eastern Band has in North Carolina The Cherokee who were removed to what we now know as Oklahoma initially had a large reservation, but that land was eventually divided up (by the politicians) and ownership assigned to individual Cherokee families. This made it easier for the land to be acquired by non-Cherokees piecemeal.
I grew up on and currently live on a farm in southeast Tennessee that was part of the last portion of the Cherokee nation that was ceded prior to the Indian Removal. About four miles from my home is the site of the last eastern capital of the Cherokee before they went west, now a state historical park. I grew up with a strong sense of what the Cherokee lost in their original homeland and why they tried so hard to hold on to it. Cherokee citizenship is determined by proof of descent from Cherokee registered on the rolls of those removed to the west (generally speaking). Many of the Cherokee were even then of mixed race. Their longest-serving chief, John Ross, was only 1/8th Cherokee by blood quantum.
After reading responses here, I would have to change my vote to a “maybe” or a non-voting member. Chris made a great point about identity politics voting blocs, which is antithetical to our representative democracy, something I hadn’t thought about at all. Marie also pointed out that many Native Americans already vite in their Congressional districts, so a Cherokee representative would give, essentially two votes.
That is the beauty of this blog. Commenters challenge and provoke thought. Well done Ethics Alarmists.
jvb
That’s fine, but the first thing that jumped into my head when I read about this was laches, the legal doctrine which holds that if a party doesn’t assert a legal right or remedy for an unreasonable amount of time for good reason, that right or remedy no longer exists.
Sounds an awful lot like the legal and ethical justification for open carry advocates doing what they do.
You’re going to have to explain that one a bit more, RPE.
I don’t see how – it seems self evident to me. If open carry of rifles (and rifle related menagerie) is a right then it must be practiced so that time and dimming cultural memory don’t erode the foundation of that right. If everyone stopped carrying weapons in public for a few generations, then those Supreme Court judges raised in our hypothetical timeline will not have had exposure to this right, will not have seen it practiced, and will not have seen the public treat it as a right, and as such will give very little weight and motivation to preserving it as a right. The best way to defend the second amendment is to practice the second amendment so that future generations of court members cannot use some societal version of stare decisis to limit an unpracticed right.
I.e. if a party doesn’t assert a legal right or remedy for an unreasonable amount of time for good reason, that right or remedy no longer exists. Obviously this is not true of rights, the rights exist even if the supreme court say that they don’t, but as a practical matter it’s a very real concern. The supreme court has not been the most reliable protector of the peoples rights – one need look no further than United States v. Cruikshank where after the federal government passed the 14 amendment recognizing the civil rights of black citizen, the Supreme Court immediately turned around and made it a.o.k for the states to shit on that right. So stacking the deck through practice is very much good practice. For example, various legislative attacks on the AR15 platform failed precisely because it’s a very commonly used gun platform (we’ve even covered one or two of these attacks here on EA over the years). The idea that common practice determines the validity or a right is a silly one that the supreme court has none the less found persuasive.
That’s an interesting take, but I think it dashes to a slippery slope, requiring, for example, all of us free speech absolutists to engage in what the woke regard as hate speech and intentionally ugly rhetoric in order to preserve the right. I think the right to be an asshole is essential, but I don’t want to constantly be an asshole to ensure that right.
Not all slopes are slippery my friend. We don’t all need to be assholes all the time in order for a right to be preserved. A small but vocal minority will and, currently does, suffice for pretty much every right. There are indeed a small portion of assholes out there saying terrible things and so far they’ve been sufficient backstop. The open carry advocates are one such small and vocal minority – we don’t all need to carry rifles to support or recognize their ethical and constitutionally sound work.
An explanation of why the right was never exercised is pretty simple. In 1832, the Supreme Court had ruled that the Cherokee Nation was a distinct community, subject only to the laws of the federal government, and not subject to state laws. Andrew Jackson wasn’t really happy with that and ignored it. The State of Georgia was ignoring it and Jackson realized that federal troops might have to fight Georgia state troops if the ruling were enforced. Jackson decided to remove all the tribes from the Southeast to Indian Territory to solve that problem and others (like the discovery of gold). So, the Cherokee signed the Treaty of New Echota forcing them off their lands in North Carolina and given lands in the Indian Territory (and the delegate). However, this process became the Trail of Tears. That upheaval is likely the reason the Cherokee never exercised their right. It probably was lost in the upheaval and chaos that ensued.