The Treaty of New Echota guaranteed the Cherokee various terms in exchange for forever surrendering their ancestral homelands. Among these were a payment of $5 million, a “new home” west of the Mississippi River, one year of support after the move — and a delegate to the U.S. House of Representatives. 

In the 187 years since, the United States has either honored the treaty terms or irreversibly dishonored them, as when it promised to remove the tribe “comfortably, and so as not to endanger their health” — a quarter of the tribe’s population died on the Trail of Tears. But it never touched the delegate provision. Now, the Cherokee Nation of Oklahoma is pressing hard to get it done. 

“Fulfilling this promise would be an historic victory for treaty rights and sovereignty,” Cherokee Nation Principal Chief Chuck Hoskin Jr. said during a Nov. 16 hearing before the House Rules Committee. “The Treaty of New Echota requires, Mr. Chairman, the House to seat our delegate. I urge you to seat Kim Teehee without delay.”

The delegate provision has remained quietly unfulfilled since it was first written, but Hoskin made it a priority for his time as the Cherokee Nation’s top elected executive. Shortly after his election in 2019 and following the process outlined in the tribe’s Constitution, he nominated Kim Teehee as the tribe’s delegate to Congress, despite the fact that Congress had not yet created a seat for Teehee to fill. Teehee currently serves as the tribe’s director of government relations. 

The Nov. 16 hearing was an historic — though preliminary — move toward seating her in Congress. 

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“This is a hearing to give Congress an opportunity to understand the issue of seating a delegate to represent the Cherokee Nation,” said Rep. Tom Cole, who represents the fourth district in Oklahoma and is a member of the Chickasaw Nation. “No vote on that issue today. Indeed at present, no legislation has been introduced on this issue. Today’s hearing is a good first step, but we have a long way to go in the process.”

How many Cherokee delegates? 

During the two-hour meeting, committee members heard from Hoskin, University of Oklahoma law professor Lindsay Robertson and Congressional Research Service legislative attorney Mainon A. Schwartz on a variety of issues surrounding the potential seating of a Cherokee Nation delegate. Schwartz submitted a 19-page testimony statement titled “Legal and Procedural Factors Related to Seating a Cherokee Nation Delegate in the U.S. House of Representatives” analyzing those issues — but Eastern Band of Cherokee Indians Principal Chief Richard Sneed said the document left out a key issue. 

“It does not address one of the central issues in this debate, that is, to which group of federally acknowledged Cherokee sovereigns does Article 7 apply?” Sneed wrote in a Nov. 16 letter to Rules Committee Chairman James McGovern and Ranking Member Cole. 

Both the EBCI and the United Keetoowah Band of Cherokee Indians contend that the New Echota delegate provision applies to them as well, arguing that their tribes should be allowed to seat delegates in addition to the one chosen by the Cherokee Nation. Hoskin, however, disagrees. 

“Cherokee Nation and Cherokee Nation alone is the tribe that is the party to the Treaty of New Echota and the Treaty of 1866,” he told the Rules Committee. 

In a statement to The Smoky Mountain News, Hoskin said he bases this claim on the 1886 Supreme Court ruling in Eastern Band of Cherokee Indians v. United States that states that “the Cherokees in North Carolina dissolved their connection with their nation when they refused to accompany the body of it on its removal,” and that “no treaty has been made with them.” During the hearing, Hoskin said he has “great respect” for the EBCI and UKB but that the question of the treaty’s applicability to the EBCI has been “asked and answered” and that the UKB wasn’t authorized by Congress until 1946, more than a century after the Treaty of New Echota. 

The EBCI and UKB disagree with Hoskin’s conclusions. 

“The UKB is a successor in interest to all the Cherokee tribes, just like the Cherokee Nation of Oklahoma and the Eastern Band of Cherokee,” said Tori Holland, who the UKB has named as its Congressional delegate. “Therefore, any treaty promise made to the Cherokee people should be given equally to all Cherokee tribes. Therefore, if Congress seats one delegate, it should seat all Cherokee delegates.”

Sneed contends that the 1886 court decision focused on which group of Cherokee people should receive funds from the sale of specific properties and does not address other treaty provisions. He said that federal courts have issued “numerous decisions” over the years affirming that the Treaty of New Echota is binding on all three Cherokee Tribal Nations, though he did not cite specific decisions. 

“We disagree that it should be the sole right of Cherokee Nation to seat a person of its exclusive choosing and believe that any action to establish an Article 7 Cherokee delegate should include a delegate from the Eastern Band,” Sneed said in a statement. “We look forward to working together to find a path forward that fully honors this treaty with the Cherokee nations.”

In his letter to McGovern and Cole, Sneed pointed out that CRS did not contact the EBCI about the fact that it was researching and preparing a report on this “complicated and very important aspect of U.S. and Cherokee law and history.” Therefore, he said, the resulting report does not consider the EBCI’s views on the matter. 

During the hearing, McGovern said he’d received letters from two other tribes in addition to the EBCI and UKB who claimed their treaties granted them a right to a congressional delegate. Schwartz responded with her analysis as to why those claims were weaker than that of the Cherokee Nation but did not comment on the EBCI and UKB’s claim. 

“The Congressional Research Service does not take a position on whether the Cherokee Nation or other tribes are successors in interest to the Cherokee tribe that signed the treaty,” she said. 

Getting it done 

The hearing included ample discussion as to whether this arrangement would raise concerns about double representation. At the time of the Treaty of New Echota, Oklahoma was not a state and Native Americans did not have the right to vote. Now it is, and they do, so committee members wanted to know if honoring the delegate provision would unfairly give some voters double representation in Congress.  

If seated, the delegate would be a non-voting member, similar to those currently representing the U.S. territories and Washington, D.C. Non-voting delegates can sit on and vote in committees but may not vote on final passage of any bill or resolution. 

Hoskin said double representation is not a concern, because the delegate could not vote on final passage and because of the tribe’s sovereign status. Additionally, he pointed out, tribal members are disbursed throughout all 50 states. 

“The argument misses that the Cherokee Nation is the sovereign nation whose interests are represented by the delegate,” he said. “The treaty itself was a treaty between two sovereign nations, the United States and the Cherokee Nation, and the parties determined that the Cherokee Nation governmental interest would be uniquely represented in the House of Representatives. In that sense I don’t see the double representation.”

The hearing also examined the issue of how the delegate could be seated, should Congress choose to do so. 

Schwartz said “there is an argument” that the delegate could be seated with only an amendment to the House standing rules rather than through legislation. However, this would be “novel and a break from the House’s prior position with respect to seating territorial delegates,” and it would require the House to reaffirm the delegate’s position every two years. Because the Treaty of New Echota says that “Congress” should “make provision for” the delegate — not just one chamber of it — there is also an argument that the process should require input from the Senate. 

In his comments, Hoskin seemed to favor the quicker, though less durable, House rules approach, with McGovern suggesting the House pursue both avenues simultaneously. 

“If the United States at long last, after nearly two centuries, agrees to honor this promise in this Congress — and it could happen this year — I would think it’d be breathtaking for the next Congress to say we’re going to then break this promise,” Hoskin said. 

While the Cherokee tribes certainly disagree as to how the delegate provision should be implemented, they’re encouraged by the fact that Congress is now considering how to do it. 

“After nearly 200 years, we are heartened that Congress is finally stepping up to look at this treaty,” Sneed said.