The issue of seating a Cherokee Delegate in the House rose to prominence on August 22, 2019, when Cherokee Nation Principal Chief Chuck Hoskin Jr. announced his tribe's intention to nominate a delegate to represent the Cherokee Nation. This announcement invoked a provision of the 1835 treaty between the Eastern Cherokee Tribe of Georgia ("Cherokee Tribe" or "Cherokee"¹) and the U.S. government (New Echota Treaty).² On August 29, 2019, the Council of the Cherokee Nation unanimously approved Chief Hoskin's nomination of Kimberly Teehee to serve as the Cherokee Delegate.³ Efforts to seat her were reportedly delayed due to the COVID-19 pandemic.⁴ On November 18, 2022, the House Committee on Rules held a hearing to discuss legal and procedural matters related to Ms. Teehee's nomination.⁵

If seated, the Cherokee Delegate could not be a full voting participant in the House under Article I, Section 2 of the Constitution, which sets forth requirements for the composition of the House and qualifications of its Members. Among these is the requirement that "Members [be] chosen every second Year by the People of the several States,"⁶ a requirement that a Cherokee Delegate would not meet. Accordingly, the Cherokee Delegate could not vote on the House floor to pass legislation. However, the chamber could authorize a Cherokee Delegate to vote in committee and to address Members from the floor. This is similar to the current role of delegates for the U.S. territories and the District of Columbia,⁷ which changes in its particulars (such as voting in the Committee of the Whole) from time to time. In the 118th Congress—and previously in the 103rd, 110th, 111th, 116th, and 117th Congresses—delegates are permitted to vote in and preside over the Committee of the Whole, although their votes are not permitted to be decisive.⁸

This report identifies and analyzes an array of legal and procedural factors Congress may consider when evaluating possible congressional action in response to the Cherokee Nation's nomination of a delegate to the House. These include certain principles of treaty interpretation; analysis of the relevant treaty provisions and historical context; evaluation of events subsequent to treaty signing; procedural options for recognizing a Cherokee Delegate; and potential objections to such actions.

Principles for Interpreting Treaties with Indian Tribes

Treaties with federally recognized tribes⁹ are sui generis because of tribes' unique legal status under the Constitution.¹⁰ Early in U.S. history, the U.S. Supreme Court characterized federally recognized tribes as "domestic dependent nations" with a relationship to the federal government akin to a ward's relationship to its guardian.¹¹ As a consequence, the courts have held that a trust relationship exists between the United States and federally recognized tribes and have developed three distinct canons of construction for interpreting Indian treaties, known as the Indian canons.¹² First, treaties with Indian tribes should generally be interpreted in the sense in which the tribal signers would have understood them.¹³ Second, ambiguities regarding tribal interests should be construed to the tribes' benefit.¹⁴ Third, if Congress intends to diminish tribal lands or abrogate a treaty, it must do so explicitly.¹⁵ Notwithstanding this clear-intent requirement, Congress retains the authority to abrogate an Indian treaty by subsequent legislation.¹⁶

Historical Provisions Mentioning a Legislative Deputy or Delegate

Given the canon of construction requiring that the words of a treaty be interpreted as they would have been understood by the Indian tribe signing it, one source for developing that understanding may be the use of similar language in other contemporaneous documents, such as other historical treaties containing delegate provisions.¹⁷ Several other treaties from approximately the same time period, including one between the Cherokee and the Confederate States of America during the Civil War, contain references to delegates or other representatives that may shed light on the contemporaneous understanding of those terms.

Agreements Between the United States and Tribes Other Than the Cherokee

The first treaty with a tribal nation signed by the United States, the Treaty with the Delawares of September 17, 1778, contained a provision for representation in the Continental Congress at a future date, subject to certain conditions including congressional approval.¹⁸ Thus, the Cherokee Tribe was not the only tribe with a treaty provision permitting a legislative delegate, though it does not appear that the U.S. Congress or its predecessor bodies has ever taken action to effectuate such a provision by seating a tribal delegate from any tribe.¹⁹

Contemporaneously with the signing of the New Echota Treaty in 1835, Congress considered various bills to remove the Indian tribes to the West and to provide for an Indian Territory outside of any state (thus free of state interference with federal Indian policy).²⁰ The House Committee on Indian Affairs recommended the creation of an Indian Territory subject to federal law and control over which the Indian tribes, united in a confederation, would exercise limited self-government.²¹ The Committee also recommended providing "to the confederation a delegate in Congress, with the privileges and emoluments of a territorial delegate," encouraging the hope "of their eventual admission as a State into the Union."²²

This provision appeared in a bill—favorably reported by the House Committee on Indian Affairs—to provide for the establishment of a Western Territory and for the security and protection of the emigrant and other Indian tribes therein. That bill included provisions for a territorial governor appointed by the President; the organization of a confederation of the tribes settled in the Territory with power to enact ordinances regarding intertribal affairs that would go into effect upon the governor's approval; civil and criminal jurisdiction over the territory and persons within it; and applicability of the Indian trade and intercourse laws.²³ Also included was a provision allowing "the said confederated tribes to elect, in such manner as the General Council may prescribe, a Delegate to Congress, who shall have the same powers, privileges, and compensations as are possessed by the Delegates of the respective Territories."²⁴ The Committee approved of this provision, among other reasons, for affording the tribes "convincing proof of the desire of the United States" to secure for the tribes "all the blessings of free government" and "full participation" in the privileges of the American people.²⁵

The Committee further expounded its reasons for recommending such a delegate and concluded that the "right to a delegate in Congress" was "a subject of the deepest solicitude for the Indians," and "the strongest assurance" that the United States would fulfill its promises. The Committee wrote, "it is believed public sentiment will sustain the concession as an act of justice as well as of sound policy."²⁶ The committee report also provided a history of other treaties calling for Indian delegates to Congress.²⁷

Treaty Between the Cherokee and the Confederacy

On October 7, 1865, the Cherokee concluded a treaty with the Confederate States of America, which included as Article XLIV a detailed entitlement to "a Delegate to the House of Representatives of the Confederate State [sic] of America . . . [with] the same rights and privileges as may be enjoyed by Delegates from any Territories of the Confederate States to the said House of Representatives."²⁸ This provision was intended "to enable the Cherokee Nation to claim its rights and secure its interests without the intervention of counsel or agents."²⁹

Though perhaps of limited usefulness given its status as a non-U.S. treaty, this delegate provision could shed light on the expectations the Cherokee would have assigned to a promise of a delegate. The fact that the rights and privileges would have been tied to those of delegates from other territories of the Confederacy, rather than delegates from the Confederate States, may indicate an understanding that Cherokee Delegates would not be on the same footing as elected representatives.

Treaties Between the Cherokee and the United States

Prior to the Cherokee's treaty with the Confederate States of America, two treaties between the Cherokee Tribe and the United States mentioned a tribal deputy or delegate to the national legislature. A third treaty reaffirmed the relationship between the Cherokee and the United States after the Confederacy surrendered, but it does not explicitly mention a delegate.³⁰

Treaty of Hopewell (1785)

Article XII of the 1785 Hopewell Treaty with the Cherokee Tribe (Hopewell Treaty)³¹ provides: "That the Indians may have full confidence in the justice of the United States, respecting their interests, they shall have the right to send a deputy of their choice, whenever they think fit, to Congress."

The Hopewell Treaty predates the U.S. Constitution.³² At that time, the Confederation Congress's³³ goals were to make peace with tribes that had sided with the British in the Revolutionary War; to establish boundaries with Indian nations; and to consolidate power over Indian affairs in the national government.³⁴ The guarantee of the right to send a deputy to the Confederation Congress appears in this context. The Hopewell Treaty also provided for exchanging prisoners of war; acknowledged the Cherokees as under the United States' protection; designated boundaries and jurisdiction; established commercial relations; and pledged peace.³⁵

The minutes of the treaty council do not elaborate on the intent behind establishing a right to send a deputy to the Confederation Congress, nor do they reflect whether its inclusion came at the request of the Cherokee or at the commissioners' suggestion.³⁶ According to the minutes, the commissioners produced a draft treaty, which was read to the Cherokee Tribe and translated, at which point the Cherokee agreed that they understood and would sign the treaty.³⁷

Nonetheless, because (1) the Cherokee Nation purports to act on the New Echota Treaty, rather than the Hopewell Treaty, in nominating a delegate; (2) the Confederation Congress is not the same body as the current U.S. Congress; and (3) the right to a deputy may differ materially from the right to a delegate, this report does not further analyze the Hopewell Treaty's deputy provision.

New Echota Treaty (1835)

Article 7 of the New Echota Treaty between the United States and the Cherokee Tribe provides that the Cherokee "shall be entitled to a delegate in the House of Representatives of the United States whenever Congress shall make provision for the same."³⁸ An examination of the Treaty's terms and historical context could provide additional perspective on that provision.

In the New Echota Treaty, the Cherokee signatories agreed to relinquish their eastern lands and remove their nation to new territory west of the Mississippi River. Ultimately, tens of thousands of Cherokee members underwent a forced trek westward known as the Trail of Tears.³⁹ The Treaty signing occurred during an era when one of the federal government's policy goals was removal of Indian tribes to unsettled lands in the West, freeing eastern lands for non-Indian settlers.⁴⁰ The parties entered into the Treaty⁴¹ three years after the Supreme Court, in Worcester v. Georgia,⁴² rejected Georgia's attempt to exercise authority within Cherokee country.⁴³ Thus, at a time when the Cherokees were suffering "increasing abuse from white settlers," the United States "signed a treaty with the supporters of removal"⁴⁴ among the Cherokees. However, because the signatories did not include Cherokee leaders,⁴⁵ the New Echota Treaty appears to have lacked the support of the majority of the Cherokee Tribe.⁴⁶

Those who signed the New Echota Treaty assented to a Preamble stating that they desired to move west and establish a permanent homeland for their entire nation.⁴⁷ Under Article 16 of the Treaty, the Cherokee Tribe signatories agreed "to remove to their new homes within two years from the ratification of this treaty."⁴⁸ Provisions on claims for former reservations⁴⁹ and for accommodating Cherokees who wished to remain⁵⁰ were eliminated based on President Andrew Jackson's "determination . . . that the whole Cherokee people should remove together and establish themselves in the country provided for them west of the Mississippi."⁵¹

Article 1 of the New Echota Treaty ceded Cherokee lands east of the Mississippi to the United States in consideration of $5 million.⁵² Under Article 2, the United States agreed to supplement western lands already provided for the Cherokees in earlier treaties by selling 800,000 additional acres to them in fee simple for $500,000.⁵³ Article 5 provided that the ceded lands would not "be included within the territorial limits or jurisdiction of any State or Territory" without the Cherokee Tribe's consent.⁵⁴ Other provisions of the Treaty addressed establishing forts;⁵⁵ guaranteeing peace;⁵⁶ extinguishing Osage title to lands within the area guaranteed to the Cherokees;⁵⁷ covering expenses for Cherokee removal;⁵⁸ appointing agents to value improvements on ceded land;⁵⁹ investing Cherokee funds;⁶⁰ transferring the Cherokee school fund;⁶¹ granting pensions to Cherokee warriors for aid in the War of 1812;⁶² and dividing funds among the various Cherokee groups.⁶³ Finally, the Treaty included provisions authorizing the commissioners to settle the claims specified in the Treaty⁶⁴ and providing for advances of annuities to meet pre-removal conditions.⁶⁵

In terms of shedding light on the likely meaning of the delegate provision, the larger context of the New Echota Treaty's other provisions is not likely to be conclusive. One could argue that the concessions made by the Cherokee signatories were so broad that the concessions made by the United States would also have been interpreted expansively. One could argue conversely that the delegate provision was one small part of a wide-ranging treaty, so that no inferences should be drawn from the broader negotiations. Because no court has construed the New Echota Treaty's delegate provision, it is difficult to predict which interpretive arguments would be most persuasive.

Current Status of the Delegate Provision

Both before and after the Hopewell Treaty, representatives from the Cherokee Tribe were present in Washington, D.C.⁶⁶ One historian writes: "During the 1820s and 1830s Cherokee Delegates were virtual residents of Washington as they monitored and fought legislation designed to evict them from their ancestral homes."⁶⁷ Similarly, following the New Echota Treaty and throughout the 19th century, Cherokee representatives were present in Washington, D.C. to interact with the federal government.⁶⁸

Notwithstanding this historical practice, the delegate provision of the New Echota Treaty, on its face, appears to contemplate additional congressional action—"whenever Congress shall make provision"—before a Cherokee Delegate could be seated in the House. Congress has never affirmatively provided for a Cherokee Delegate in the House pursuant to the Treaty.

Whether a treaty provision carries the force of law depends on the nature of the agreement—specifically, whether the treaty provisions are self-executing or non-self-executing.⁶⁹ The Supreme Court has long recognized a distinction between self-executing treaties, which "automatically have effect as domestic law," and non-self-executing treaties, which "do not by themselves function as binding federal law."⁷⁰ A self-executing treaty is "'equivalent to an act of the legislature' . . . when it 'operates of itself without the aid of any legislative provision.'"⁷¹ A non-self-executing treaty, however, may be enforced only "pursuant to legislation to carry [it] into effect."⁷² Treaty provisions are deemed non-self-executing if the text manifests intent that the provision not be enforceable by U.S. courts because the legislature must first "execute the contract."⁷³ There is also broad agreement that treaty provisions should be construed as non-self-executing if they require action that the Constitution assigns exclusively to Congress or one of its chambers.⁷⁴

At least one court found compelling an argument that "Indian treaties are virtually always self-executing" and that "no case has ever held an Indian treaty to be non-self-executing."⁷⁵ However, that case did not involve a treaty provision that expressly contemplated congressional action to execute it. Moreover, that court acknowledged two points of long-standing precedent from an 1894 case: (1) "no distinction is there made between a treaty with a foreign nation and with an Indian tribe," and (2) "where such treaty prescribes a rule by which private rights can be determined, the court will resort to such rule; otherwise the court must look to the legislation of Congress for the enforcement of its provisions."⁷⁶

In the New Echota Treaty, the phrase "whenever Congress shall make provision for the same" appears on its face to render the Cherokee Delegate provision non-self-executing, requiring congressional action to enforce it. The United States, at least, seemed to believe that congressional action would be required to seat a Cherokee Delegate.⁷⁷ Constitutional considerations may also favor reading the delegation provision as non-self-executing. The House does not have a direct role in the treaty-making process. It could raise significant constitutional issues if the President and Senate were able to bind the House to seat a delegate by way of a treaty commitment without implementing legislation approved by that chamber.⁷⁸ As a result, it appears unlikely that a court would find that the New Echota Treaty created an enforceable (self-executing) right in the absence of further action by Congress.

In addition to the self-execution question, Congress may consider whether the New Echota Treaty's delegate provision is precatory in nature—meaning it might reflect the hope that Congress take steps to allow a delegate without obligating it to do so.⁷⁹ Congress may be empowered to apply elements of its views on this and other matters of interpretation because, although U.S. courts often have final authority to interpret treaties' meanings and requirements, Congress plays a unique role in treaty interpretation when it implements treaties through domestic legislation.⁸⁰

Ultimately, the likely non-self-executing nature of the Cherokee Delegate provision matters only insofar as it means an affirmative act by Congress is likely required to seat a Cherokee Delegate. If Congress were inclined to consider congressional action in relation to the New Echota Treaty's delegate provision, whether that provision is self-executing or not makes no difference.

When deciding whether or not to act, Congress may also consider its views on whether the treaty and its delegate provision continue in force. The canons of treaty interpretation discussed above, though generally viewed as guidelines for judicial interpretation and not binding on Congress, may inform Congress's interpretation. As discussed below, those interpretive canons may tend to counsel in favor of finding that the New Echota Treaty generally, and the Cherokee Delegate provision particularly, continue in force.

The Possibility of Ineffectiveness or Abrogation

The New Echota Treaty's delegate provision, even if not self-executing, remains relevant to the extent that Congress could still take action to effectuate it. That is, the delegate provision would generally remain in effect unless it has been abrogated or otherwise rendered invalid or unenforceable. Several considerations may be relevant to this analysis.⁸¹

Effectiveness. Although Congress has never enacted legislation to establish and fund an Office of the Cherokee Delegate to the House, it also has never explicitly abrogated the New Echota Treaty's delegate provision. One could argue that the Cherokee Tribe broke off relations with the United States when it entered into a subsequent treaty with the Confederacy, thereby violating and possibly terminating or abrogating the New Echota Treaty.⁸² However, the President does not appear to have expressly abrogated the Treaty following that action, and the Treaty of July 19, 1866 (1866 Treaty) subsequently restored relations between the Cherokee and the United States.⁸³ The 1866 Treaty did not explicitly refer to a Cherokee Delegate, but it did explicitly reaffirm "[a]ll provisions of treaties heretofore ratified and in force, and not inconsistent with the provisions of this treaty"⁸⁴—a broad statement that seemingly reaffirmed that the New Echota Treaty's delegate provision.

Accordingly, one view of the Treaty's delegate provision is that it represents an obligation to seat a delegate nominated by the Cherokee (even if that obligation might require implementing legislation⁸⁵), rather than merely a pledge that Congress might consider whether to seat such a delegate if nominated.⁸⁶ Another view, finding support in differences between the New Echota Treaty's provision and other treaties executed by the Cherokees,⁸⁷ might suggest that the New Echota Treaty was not understood to constitute a pledge to seat a Cherokee Delegate. Under that view, the Treaty with the Confederacy's more explicit description of a Cherokee Delegate's powers⁸⁸ suggests that the Cherokee delegation negotiating with the Confederacy recognized and sought to correct a perceived inadequacy in the New Echota Treaty's language. From this perspective, a comparison of the delegate provisions in three Cherokee treaties may be instructive:

• 1. The 1785 Hopewell Treaty, the first Cherokee treaty with the United States, speaks of "the right to send a deputy of their choice, whenever they think fit to [the Confederated] Congress," possibly referring to an agent or the equivalent of a lobbyist, rather than a right of representation in the Articles of Confederation-era national legislature.⁸⁹
• 2. The 1835 New Echota Treaty provides for "a delegate in the House of Representatives of the United States whenever Congress shall make provision for the same,"⁹⁰ arguably incorporating some notion of representation.
• 3. The 1861 Treaty with the Confederacy specifies a method of electing and compensating the Cherokee Delegate to the Confederate House of Representatives while also detailing the included powers: "each Delegate shall be entitled to a seat in the hall of the House of Representatives, to propose and introduce measures for the benefit of the said nation, and to be heard in regard thereto, and on other questions in which the nation is particularly interested."⁹¹

Abrogation. One could argue that the New Echota Treaty's Cherokee Delegate provision was tied to the fate of Indian Territory and that Congress abrogated the delegate guarantee either by not providing for a separate Indian Territory, as envisioned by Congress in the 1830s, or by including the Indian Territory in the State of Oklahoma. However, such arguments appear to be hampered by the lack of specific evidence of a congressional intent to abrogate.⁹² As noted, Supreme Court jurisprudence generally⁹³ rejects treaty abrogation by implication and instead seeks legislative precision and clarity. Nonetheless, that this possible purpose or context for the delegate provision may no longer be relevant could factor into Congress's policy considerations today.

Although Congress considered various bills to remove Indian tribes to the West and to create an Indian Territory separate from any state,⁹⁴ none was enacted. The House Committee on Indian Affairs reported favorably a bill that would have created an Indian Territory over which a confederation of Indian tribes would exercise limited self-government subject to federal law and control.⁹⁵ That bill included a delegate provision, but not for a Cherokee Delegate specifically.⁹⁶ The bill would have provided "to the confederation a delegate in Congress, with the privileges and emoluments of a territorial delegate" and explicitly encouraged in tribes "a hope . . . of their eventual admission as a State into the Union."⁹⁷ The Committee detailed its reasons for recommending such a delegate, including a delegate's ability to communicate the "practical effect" of legislation as well as suggestions and complaints.⁹⁸

The bill included provisions for a territorial governor, appointed by the President; a confederation of the Tribes settled in the Territory,⁹⁹ empowered to enact ordinances over intertribal affairs that would go into effect upon the governor's approval; civil and criminal jurisdiction over the territory and persons within it; and applicability of the Indian trade and intercourse laws.¹⁰⁰

Oklahoma Statehood. Another argument may be that the Cherokee Delegate provision did not survive the Oklahoma Statehood Act of 1906¹⁰¹ because Indian Territory was no longer outside any state. However, the New Echota Treaty does not include language characterizing the Cherokee Delegate provision as temporary (i.e., as terminating upon an event such as statehood), and the Supreme Court has rejected abrogation of Indian treaty rights by implication. In Minnesota v. Mille Lacs Band of Chippewa, for example, the Court declared, in relation to whether off-reservation treaty hunting and fishing rights survived Minnesota's statehood, that "[t]reaty rights are not impliedly terminated upon statehood."¹⁰² Likewise, the Court in 2020 affirmed that Oklahoma statehood did not disestablish a reservation that had been established in Indian Territory by treaty.¹⁰³

Additionally, in a 2019 case involving whether the Crow Tribe's treaty-protected hunting rights survived Wyoming's statehood, the Court explained that the crucial questions in determining a treaty's status are whether (1) Congress expressly abrogated the treaty or (2) the treaty terminated under its own provisions.¹⁰⁴ If neither of those can be answered affirmatively, the treaty continues in force. Statehood thus appears to be irrelevant to a treaty termination analysis unless the legislation permitting statehood demonstrates Congress's clear intent to abrogate that treaty or statehood is written as a termination point in the treaty.

None of the chief laws leading to Oklahoma statehood—the Oklahoma Organic Act of 1890,¹⁰⁵ the Dawes Commission Act,¹⁰⁶ the Curtis Act of 1898,¹⁰⁷ and the Five Tribes Act¹⁰⁸—includes any specific mention of a Cherokee Delegate or the relevant New Echota Treaty provision.

In light of the above, Congress could reasonably conclude that it had not acted to abrogate the Cherokee Delegate provision. As such, it would appear that Congress could still take action to effectuate the provision and seat a nonvoting Cherokee Delegate in the House.

Procedural Options to Seat a Cherokee Delegate

Congress could continue to take no action on the Cherokee Nation's nomination of a delegate. However, if Congress were to consider seating a Cherokee Delegate in the House, it could evaluate the following procedural options. Of these options, a legislative enactment has historically been the exclusive method to seat delegates, albeit in territorial rather than tribal contexts, and therefore may be the option least likely to raise constitutional concerns.

1. Enactment of Legislation

Historically, Congress has used legislation to add new delegates. No such position in Congress has been established except by law. To seat a Cherokee Delegate using this approach would require House and Senate agreement and presidential approval (or a veto override) of a bill (H.R./S.) or joint resolution (H.J.Res./S.J.Res.) that establishes a seat in Congress for the new delegate.¹⁰⁹

Two territories acquired by the United States from Spain—Puerto Rico and the Philippines—were statutorily afforded representation by way of a "resident commissioner" rather than a "delegate." Initially, the resident commissioners from Puerto Rico and the Philippines did not enjoy the same privileges as prior delegates (for instance, they were not allowed on the House floor). The Philippines are no longer a territory of the United States, and the representative from Puerto Rico is now known as the Resident Commissioner, a position functionally equivalent to "delegate," except that the Resident Commissioner serves a four-year instead of two-year term.¹¹⁰

Reproduced below is Table 1 of CRS Report R40555, Delegates to the U.S. Congress: History and Current Status, which identifies legislative enactments since the First Congress (1789 to 1790) providing for territorial representation in the House. Most of the territories listed in Table 1 were later incorporated into the Union as states.

2. Incorporation of Position into the Standing Rules

Although untested, the U.S. House of Representatives could potentially choose to seat a new delegate by adjusting its standing rules to accommodate a Cherokee Delegate, either at the outset of a new Congress or at some point thereafter. A simple House resolution (H.Res.), which does not require bicameralism and presentment and therefore would not constitute binding law, may be appropriate for this purpose. Provisions to seat a new delegate could be presented to the House as part of the standing rules package traditionally agreed to on the opening day of a new Congress or as a separate resolution proposing changes to the standing rules that would allow the delegate to be seated.

Measures to change the House's standing rules fall within the jurisdiction of the House Committee on Rules. If called up on the House floor, a resolution to seat the new delegate could be considered "in the House" under the one-hour rule, under suspension of the rules (clause 1 of Rule XV), or through terms set forth in a special rule reported by the Rules Committee and agreed to by the House.

Compared to the enactment of bills or joint resolutions, a change to the standing rules could be accomplished with support from a simple majority of Members (a quorum being present), or with two-thirds support via suspension procedure. The Senate does not have a role in making changes to House rules. However, the House's standing rules expire at the end of each Congress. For a position established in this way to endure, it would need to be incorporated into the standing rules of each subsequent Congress.

The legality of seating a delegate through a House rule, rather than by legislation passed by both chambers and enacted into law, is untested. The Constitution does not reference delegates. While the Constitution vests each chamber of Congress with the power to "determine the Rules of its Proceedings,"¹¹¹ this authority focuses on the internal procedures of each body, rather than who may be seated.¹¹² The power to determine rules is also bounded by the Constitution. As the Supreme Court has stated, "the Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights."¹¹³

There may be reasons to believe that seating a delegate requires exercise of legislative authority allotted by the Constitution. At least one federal court determined that Congress's constitutional authority to establish seats legislatively for nonvoting territorial delegates derives from the Constitution's Territories Clause and District Clause.¹¹⁴ That court characterized these clauses as conferring "Congress with plenary power to regulate and manage the political representation" of the U.S. territories and the District through the enactment of legislation. The House has historically seemed to take the view "that the office of a delegate representing a territory (or the District of Columbia) could not be created other than through legislation."¹¹⁵

Assuming, based on prior practice relating to the seating of territorial and District delegates, that a constitutional source of authority besides the Rules Clause would be necessary to seat a Cherokee Delegate, that authority could theoretically come from the President's power to "make treaties"¹¹⁶ and Congress's authority to "make all Laws which shall be necessary and proper for carrying into Execution . . . Powers vested by [the] Constitution in the Government of the United States."¹¹⁷ The House's ability to seat the Cherokee Delegate, in other words, would derive from the terms of the New Echota Treaty. The terms of that treaty, in turn, could be read to require an act of Congress—that is, a statutory enactment—to authorize the delegation to be seated.¹¹⁸ An alternative reading, though, could interpret the President's ratification of the Treaty with the advice and consent of the Senate as requiring only House action to fulfill the treaty's terms. Because no court has ruled on what is required to implement the Cherokee Delegate provision, Congress's interpretation on this matter would be binding absent a legal challenge to the validity of that interpretation.

3. Question of the Privileges of the House

In rare cases, questions surrounding the representation of delegates in the House have given rise to a question of the privileges of the House,¹¹⁹ but in no case has such a proceeding been used to establish a delegate position in the first instance. These kinds of questions, which are put to the House in the form of a simple House resolution, are "those affecting the rights of the House collectively, its safety, dignity, and the integrity of its proceedings."¹²⁰

Questions involving the organization of the House and the rights of Members (or delegates) to their seats have, in previous Congresses, given rise to valid questions of the privileges of the House. For instance, in 1857, a question of the privileges of the House arose in connection with the seating of a delegate from the territory of Utah at a time when the territory appeared to be in a state of rebellion against the United States. A resolution set forth this question of the privileges of the House.¹²¹ Similarly, a question involving the seating of Ohio Delegate James White in 1794 was raised as a question of the privileges of the House.¹²² Notably, in both cases, the delegate's position within the House had already been established through legislation prior to the question of the privileges of the House being put to the House (see Table 1).

Potential Legal Challenges to Seating a Cherokee Delegate

Should the House act to seat a Cherokee Delegate in the future, opponents to that action may consider challenging it in federal court. Such potential challenges could include issues related to constitutional guarantees of equal protection under the law, as well as other issues such as those related to justiciability. The discussion below presumes that, if seated, the Cherokee Delegate would not have full voting privileges but might exercise many of the same privileges as territorial delegates.¹²³

Equal Protection Considerations

Legal challenges to seating a Cherokee Delegate could arise under the Constitution's Equal Protection Clause. Equal protection challenges in the federal Indian law context are particularly complex because of the interaction of multiple constitutional and statutory provisions. As discussed above, Congress could attempt to seat a Cherokee Delegate through congressional action such as enacting a statute. Such a statute could prompt claims that Congress created a classification-based law or rule affecting voting rights.¹²⁴

"[M]ost legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons,"¹²⁵ so the existence of a classification is not necessarily an equal-protection violation. To establish an equal-protection claim, an aggrieved party must show it was "(1) treated differently from other, similarly situated persons and (2) 'that this selective treatment was based on an unjustifiable standard, such as race, or religion, or some other arbitrary factor or to prevent the exercise of a fundamental right.'"¹²⁶ If a law does not target a suspect class or burden a fundamental right, the law will survive an equal-protection challenge so long as "it bears a rational relation to some legitimate end"—a test known as rational-basis review.¹²⁷

Potential challengers may argue that recognizing a Cherokee Delegate violates the voting rights principle¹²⁸ known as the "one-person, one-vote" rule.¹²⁹ The Supreme Court has long held that once the government grants the electorate the right to vote, the right must be exercised on equal terms.¹³⁰ The Equal Protection Clause thus prohibits any voting restrictions that "value one person's vote over that of another."¹³¹ For example, the Supreme Court has held that the Equal Protection Clause prohibits the "debasement or dilution of the weight of a citizen's vote."¹³² Vote dilution refers to "the idea that each vote must carry equal weight," or that "each representative must be accountable to (approximately) the same number of constituents."¹³³

The circumstances surrounding the constitutional validity of a Cherokee Delegate present unique questions that go beyond the traditional apportionment context. For example, according to some legal scholars, the seating of a Cherokee Delegate may infringe upon the equal-protection rights of non-Cherokee citizens in two different ways.¹³⁴ First, if only members of the Cherokee Nation are represented by a Cherokee Delegate to Congress, and such members are also residents of one of the fifty states, those individuals could be represented by both a full voting Member and a Cherokee Delegate, thus potentially giving them a "super-vote"¹³⁵ and double representation in Congress.¹³⁶ However, courts have ruled that territorial delegates' privileges are not unconstitutional legislative powers because, under internal House rules, they cannot affect the "ultimate result" of legislative votes.¹³⁷ The extent to which a Cherokee Delegate's privileges are limited in the same way as territorial delegates may bear on whether an unconstitutional "super-vote" is created.

Second, if a tribal member were told to vote in either the election for a full voting Member or in the election for the Cherokee Delegate, this could still result in a form of "super-vote" because non-Cherokee voters would not have the same opportunity to "shop for the election in which their vote would be most powerful."¹³⁸ Thus, according to at least one commentator, "through the Cherokee delegate, non-Cherokees would see their representational rights diluted."¹³⁹

Some legal scholars suggest that the unique nature of tribal law and the historical context of the treaties and past disenfranchisement practices toward Indians may factor into the constitutional analysis.¹⁴⁰ The Supreme Court has upheld legislation that "singles out Indians for particular and special treatment" against equal-protection challenges "[a]s long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians."¹⁴¹ For example, in Morton v. Mancari, the Supreme Court upheld a classification-based law that provided employment preference for qualified Indians in the Bureau of Indian Affairs.¹⁴² The Court determined that the employment preference was not based on race, but rather the unique political status of Indians and the relationship between tribes and the government.¹⁴³ Although Morton involved racial discrimination challenges in the employment context, the unique legal status of federally recognized tribes and their members—and, in this case, the unique situation of the Cherokee Tribe and the provision it negotiated in the New Echota Treaty—may factor into a court's analysis of an equal-protection challenge.¹⁴⁴

A similar but distinct challenge could arise from other federally recognized tribes. If Congress were to seat a Cherokee Delegate, other tribes may argue they are entitled to a tribal delegate under equal-protection principles. For example, other federally recognized tribes may claim they are denied equal protection under the law because members of the Cherokee Nation were granted superior voting and representational power in Congress. These tribes may contend this results in arbitrary and disparate treatment among Indian voters.

In analyzing such a challenge, a court would likely first determine whether the various tribes are "similarly situated," because equal-protection principles require that similarly situated individuals be treated alike.¹⁴⁵ Individuals are similarly situated when they are "alike in all relevant respects," but this does not mean "identically situated."¹⁴⁶ In the case of the Cherokee Tribe, the government arguably created a non-self-executing promise of a delegate through a treaty.¹⁴⁷ A treaty between the United States and an Indian tribe is a "contract between two sovereign nations."¹⁴⁸ Therefore, it could be argued that successors-in-interest to the Cherokee signatories are not similarly situated to other tribes because other tribes are not parties to the New Echota Treaty and possess no similar treaty rights. Under that reasoning, no equal-protection violation would exist.¹⁴⁹

In other equal-protection contexts regarding disparate treatment among Indian tribes, such as in the federal tribal recognition process, courts have found that the recognition of Indian tribes is a political rather than racial determination, and rational-basis review—rather than heightened scrutiny—applies.¹⁵⁰ When applying rational-basis review, a court must only find that "the classification rationally further[s] a legitimate state interest."¹⁵¹ In this context, Congress might assert that it has a legitimate interest in executing treaty provisions.

Ultimately, the recognition of a Cherokee Delegate is a novel issue and one that cannot be easily analogized to other existing equal-protection scenarios. As a result, current precedent cannot definitively predict the outcome of such a challenge.

Justiciability

Even if a party raises an equal-protection claim challenging the constitutionality of the Cherokee Delegate, a federal court could hear the case only if it determined that the challenge is justiciable. Justiciability is a constitutional limitation established by the Supreme Court that refers to the types of matters a court may adjudicate.¹⁵² According to the Court, "it is the province and duty of the judicial department to say what the law is"; however, some claims of "unlawfulness" either involve no judicially enforceable right or are more properly entrusted to another political branch.¹⁵³ Questions in this latter category are more commonly known as nonjusticiable "political questions."¹⁵⁴

Since the Supreme Court's 1962 decision in Baker v. Carr,¹⁵⁵ courts have debated the justiciability of equal-protection challenges to the one-person, one-vote principle, finding some claims are political questions beyond the reach of the federal courts. In Baker, the Supreme Court first recognized the justiciability of malapportionment claims.¹⁵⁶ There, the Court held that a Tennessee state legislative map that had not been redrawn in nearly sixty years, despite substantial population growth and redistribution, was a challenge to the plaintiff's equal-protection rights that was "within the reach of judicial protection under the Fourteenth Amendment" and a "justiciable constitutional cause of action."¹⁵⁷ In so holding, the Court set forth six circumstances under which a claim might constitute a nonjusticiable political question:

• 1. a textually demonstrable constitutional commitment of the issue to a coordinate political department;
• 2. a lack of judicially discoverable and manageable standards for resolving the claim;
• 3. the impossibility of deciding the claim without an initial policy determination of a kind clearly for nonjudicial discretion;
• 4. the impossibility of a court's undertaking independent resolution of the claim without expressing lack of the respect due coordinate branches of government;
• 5. an unusual need for unquestioning adherence to a political decision already made; or
• 6. the potential for embarrassment from divergent pronouncements by various departments on the same question.¹⁵⁸

At bottom, the question often hinges on whether a claim is one involving a "legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere."¹⁵⁹

Beyond population deviations resulting in malapportionment, such as those presented in Baker,¹⁶⁰ the Court has also found that claims of racial gerrymandering—districting plans that unconstitutionally diminish the votes of racial minorities—present a justiciable equal-protection claim.¹⁶¹ Recently, however, the Court determined that questions of political gerrymandering, or "[t]he practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition's voting strength,"¹⁶² present political questions that are beyond the reach of the federal courts.¹⁶³ According to the Court, the one-person, one-vote principle does not extend to political parties or require that "each party must be influential in proportion to its number of supporters."¹⁶⁴ In a similar vein, although the separation of powers principle limits the justiciability of challenges to House rules—and a court may not order the House to adopt any particular rule¹⁶⁵—courts nevertheless retain "responsibility to say what rules Congress may not adopt because of constitutional infirmity."¹⁶⁶

Whether a court would find a challenge to the Cherokee Delegate justiciable may depend on several competing considerations, including who brings the challenge and how it is characterized.¹⁶⁷ For example, some matters involving treaties may preclude judicial review.¹⁶⁸ On the other hand, courts sometimes "interpret . . . treaties and . . . enforce domestic rights arising from them."¹⁶⁹ In United States v. Decker, for example, the U.S. Court of Appeals for the Ninth Circuit held that the political question doctrine did not apply in an equal protection challenge to regulations established pursuant to an Indian treaty.¹⁷⁰

Beyond treaty considerations, a court could also consider justiciability factors utilized in apportionment cases. Under such an analysis, a court may find that a traditional one-person, one-vote question is justiciable under basic equal-protection principles.¹⁷¹ In Michel v. Anderson, the U.S. Court of Appeals for the D.C. Circuit determined that a suit brought by House Members and private voters raised a justiciable claim challenging House rule changes allowing territorial and district delegates to vote in the Committee as a Whole.¹⁷²

Conclusion

The New Echota Treaty's Cherokee Delegate provision is in some respects novel, especially in the context of its modern-day applicability. The historical background is complex, and it is not clear how the signatories would have understood such a delegate's role in the House. It seems likely that some action by Congress would be necessary if it desires to implement the provision today. Ultimately, it is possible that legal challenges could arise if a delegate is seated—such as whether seating the Cherokee Delegate may present equal-protection challenges—but it is unclear how a court would decide the issues of first impression, or whether it would find the challenges justiciable at all.