Above photo: From Trail of Tears
Will They Send One?
To deal with a Trump administration, the tribal nation might now want to use that 200-year-old treaty right.
As President-elect Donald Trump prepares to occupy the Oval Office, much of Indian Country is bracing for the worst. But the U.S. Congress has an opportunity to welcome tribal nations to the table in a unique way: It can seat an Indian delegate.
For more than 200 years, the Cherokee Nation has held the right to send a nonvoting delegate to the House of Representatives, much like Puerto Rico or the District of Columbia. That right stems from treaties signed by the United States and the Cherokee Nation—treaties that are currently in effect and backed by the U.S. Constitution. It’s a right that’s also enshrined in the Cherokee Constitution:
“In accordance with Article 12 of the Treaty with the Cherokees, dated November 28, 1785 (Treaty of Hopewell), and Article 7 of the Treaty with the Cherokees dated December 29, 1835 (Treaty of New Echota), there shall be created the office of Delegate to the United States House of Representatives, appointed by the Principal Chief and confirmed by the Council.”
Yet despite having the right to send a delegate to Washington, the Cherokee Nation has never done so.
“To uphold the Constitution of the Cherokee Nation, one must endeavor to implement it,” says Chuck Hoskin Jr., secretary of state for the nation. “And one of [Cherokee Nation Principal Chief Bill Baker’s] missions when he took office in 2011 was to fully implement the Constitution.”
That means for the Cherokee Nation of Oklahoma—the largest tribal nation in the United States with more than 317,000 citizens—assigning a representative to Congress is on the list of things to do. But as always with politics, it’s complicated.
“We need to gauge the landscape in Washington with the new administration and some changes in Congress,” says Hoskin. “So we think there’s a lot of ground that would have to be plowed.”
So that right now may not be the time, but with a little work the Cherokee Nation might find a way to get a tribal delegate to the Capitol in the future.
“They’re there, every day, they’re walking the halls, they’re talking to senators and representatives,” says Chrissi Nimmo, senior assistant attorney general to the Cherokee Nation, envisioning that future delegate. “They are presenting their tribe’s viewpoint during discussion when issues come up.”
The Cherokee are one of two tribal nations—the Choctaw is the other—with right to representation in Congress. The difference between a non-voting representative and a lobbyist is that the representative is paid for by the federal government. In the case of the Choctaw, their 1830 treaty gives them the right to representation, but it’s a little different: It’s up to Congress to take an application and seat that delegate. The Cherokee can simply send a representative.
“Why hasn’t this been done sooner?” says Ezra Rosser, a professor of law at American University. “One of the answers is that tribes, for a while, were not really in a position, nor allowed to be in a position, to advocate for full realization of their treaty rights.”
While that delegate wouldn’t be able to vote on the floor, they would be able to exert influence over committees.
Bob Schwalbach, chief of staff for the Northern Mariana Islands’ nonvoting representative, Gregorio Kilili Camacho Sablan, says much of the meaningful work in Congress happens before a bill is brought to the floor.
“Congressman Sablan is able to represent constituents by introducing legislation and seeing it through to enactment,” says Schwalback. “He has been quite successful at getting changes into law.”
Much of the work in Congress is done in committees, adds Rosser. “They would be able to participate as full members there. Now the caveat to that is that the power of nonvoting delegates does shift as Congress itself goes from Democrat to Republican or Republican to Democrat.”
Generally, Rosser says, Democrats are more supportive of nonvoting delegates being full participants while Republicans are less friendly to the idea. However, in the case of the Cherokee Nation, Rosser says there could be a twist: “The Cherokee might be a Republican.”
Nearly a third of Oklahoma’s Native American state legislators are registered with the Republican Party, and currently, two of Oklahoma’s five representatives in Congress are tribal members: Tom Cole, a citizen of the Chickasaw Nation, and Markwayne Mullin of the Cherokee Nation. Both are Republicans.
Hoskin says the nonvoting delegate likely would handle issues that impact Indian Country, “provided that the Cherokee Nation interests are first and foremost.”
Due to the structure of federal Indian law, tribes are treated more or less the same. So if changes to the Bureau of Indian Affairs were being discussed, a tribal delegate would be able to advocate, protect, and speak up for all tribes. Or, if a proposed pipeline could affect a tribal nation or multiple nations, that delegate could influence the conversation. But despite Principal Chief Baker’s interest in sending a delegate to Washington at some point, the incoming Trump administration could spell an uphill battle for the Cherokee.
In the 1990s, Trump employed overt racism in order to battle Indian casinos by questioning tribal ancestry due to skin color and paying for racist advertisements that portrayed tribal citizens as drug dealers and gangsters. During his campaign Trump empowered white nationalist and white supremacist groups across the nation—groups he still has failed to disavow in any meaningful way. And most recently, the incoming president has voiced public support for completion of the Dakota Access Pipeline, raising questions about whether the recent decision to find a new route will hold after January.
And while Trump has signaled his reluctance to honor commitments or values—from his reported desire to exit the Paris Agreement to his inclination to attack journalists and comedians—the United States is still obligated to adhere to treaties.
“The main thing that non-Indians sort of continually need to be reminded of is that these were bargained-for exchanges, and tribes gave up a tremendous amount of land and resources and claims,” says Rosser. “They were supposed to be the law, and if there are provisions that are inconvenient for us to live up to, it was also inconvenient for the Indians to have to live up to their side, and they’ve done that.”
The treaties the United States made with tribes promised them the right to education, housing, and healthcare—rights the federal government has done little to uphold or protect—despite the fact that treaty rights are backed by the U.S. Constitution.
To support tribal nations in a meaningful way, one solution could be to seat a Cherokee delegate, but perhaps a more radical approach is for the United States to rethink how it deals with indigenous people at the government level.
The Maine Legislature is the only one in the country that has reserved seats explicitly for Indian representatives. In New Zealand, the Maori have had reserved seats in Parliament dating back to the 1800s, while in the Nordic countries, the indigenous Sámi operate their own parliaments that advise the governments of Finland, Norway, and Sweden.
In other words, there are precedents both at home and abroad where governments make it a point to include Native people in the political process. Given its history with Native America, it’s unrealistic to expect the United States to do the same, despite that there are nearly 570 sovereign, tribal nations within its borders that have unique wants and needs. However, a single, constitutionally backed delegate, like the one guaranteed by law to the Cherokee Nation, could be a start down that path. And with an incoming president who, at the moment, appears deaf to Native American concerns, it may be the ideal time for Indian Country to advocate for representation at the federal level.
“I don’t know if it’s a reality,” says Chrissi Nimmo of the Cherokee Nation. “But it’s a possibility.”
Editor’s note: This article was updated Jan. 5 to reflect that the Choctaw Nation also has the ability, though through different procedures, to send a non-voting delegate to Congress.