Delegate to Congress

The United States promised to seat a Cherokee Nation delegate in the U.S. House of Representatives as part of the 1835 Treaty of New Echota. As a result of the treaty, the Cherokee were forced to leave their lands and moved west on what became known as The Trail of Tears, and a full quarter of Cherokees perished along the way. Although the agreement was ratified by the Senate and signed into law by President Andrew Jackson, the House still has yet to act. The Cherokee Nation is demanding the House finally take action and seat the delegate before it adjourns.

Yes. The treaty-mandated delegate is unique to the Cherokee Nation. There were only two parties to the 1835 Treaty of New Echota: the United States and the Cherokee Nation. They alone are accountable for delivering on their commitments. Article 7 of the Treaty is definitive, 'Cherokee Nation …shall be entitled to a delegate in the House of Representatives.'

The Cherokee Nation is the holder of all U.S.-Cherokee treaties dating back to 1785 and the sole beneficiary of the commitments made by the United States to the Cherokee Nation through the Treaty of New Echota and other treaties. Courts are clear on this issue. Federal courts have held time and time again that the Cherokee Nation, and only the Cherokee Nation, entered into and is bound today by treaties signed with the United States.

Congress is clear on this issue. In 2002, through Public Law 107-331, Congress plainly said that the Cherokee Nation "has maintained a continuous government-to-government relationship with the United States since the earliest years of the Union."

The Cherokee Nation, a federally recognized Indian tribe with its present tribal headquarters south of Tahlequah, Oklahoma, having adopted its most recent constitution on June 26, 1976, and having entered into various treaties with the United States, including but not limited to the Treaty at Hopewell, executed on November 28, 1785 (7 Stat. 18), and the Treaty at Washington, D.C., executed on July 19, 1866 (14 Stat. 799), has maintained a continuous government-to-government relationship with the United States since the earliest years of the Union.

This formal determination by Congress that Cherokee Nation has had a "continuous" relationship with the United States dating back to the signing of the treaties is a complete rebuttal to claims that other tribes—tribes who came into existence long after the Treaty of New Echota was ratified—are successors to this treaty and share this right.

The Eastern Band of Cherokee Indians (EBCI) does not hold this treaty right.

• In 1886 the Supreme Court found, "The Cherokees in North Carolina dissolved their connection with their nation when they refused to accompany the body of it on its removal." The Court further decided that "no treaty has been made with them," and that the band is not "the successor of any organization recognized by any treaty or law of the United States." Explicitly, the Supreme Court dismissed any notion that the ancestors of the EBCI enjoy the treaty rights of the Cherokee Nation.

The United Keetoowah Band (UKB) of Cherokee Indians in OK does not hold this treaty right.

• The UKB was not a tribe in 1835. It came into existence more than 100 years after the signing of the Treaty of New Echota. UKB claims to the treaty or treaty right have no basis in fact and no basis in law. Nowhere in any of the U.S.-Cherokee Nation treaties are there references to the United Keetoowah Band of Cherokee Indians.

The Cherokee Nation, the Eastern Band and the UKB are distinct tribal governmental entities with distinct histories, and courts and Congress have repeatedly distinguished the tribes—and their histories—as separate and unique.

No. A treaty between the United States and an Indian tribe is a 'contract between two sovereign nations.' There is not an equal protection violation since there are only two parties – sovereign nations – involved in the Treaty of New Echota, the Cherokee Nation and the United States. History is clear that this treaty right is unique to the Cherokee Nation. Further, only three other tribal treaties contemplate representation and of them, Cherokee Nation's is by far the clearest and most direct.

Legislation is not needed. The Senate acted when it ratified the Treaty of New Echota. President Andrew Jackson signed it into law. The Constitution is clear that the only step that remains is for the House alone to take action to seat the delegate. Legislation signed by the President is also a sufficient way to seat the delegate, but it’s not necessary.

It is settled law that treaties are the supreme law of the land and Indian treaties are, by definition, self-executing. As the Congressional Research Service (CRS) recently concluded, the House has unilateral authority to seat the Cherokee delegate and can do so by a majority vote through adoption of a House rule.

No. Dual representation is not an issue. Representatives vote on the floor. Delegates do not. The individual votes of the more than 440,000 Cherokee living across the United States would still only translate into one vote in the House — that of their existing member of Congress in the district in which they live. The Cherokee Nation’s delegate will function like other delegates from the District of Columbia and the U.S. territories. The delegate will have the opportunity to serve in Committee and speak during debate, but won’t vote on the passage of legislation, so there’s no issue of dual representation.

Appointing – rather than electing – a delegate is acceptable under the U.S. Constitution. Congress has always recognized appointment as a permissible method of selection. The Cherokee Nation's delegate was appointed by Chief Hoskin in 2019 and unanimously confirmed by the Cherokee Nation's legislature. Delegates are not "representatives," so they are not required to be elected under Article I. Moreover, the first delegates in the early republic were all appointed, and Congress has always recognized appointment as a permissible method of selection.