By Noah Feldman
It’s a great story: The Cherokee Nation is asserting its right to send a delegate to Congress under treaties dating back to 1785 and 1835.
But it is also potentially a legal puzzle in the making. The 1785 treaty says the tribe is entitled to send a “deputy” to Congress whenever it wants. But that was before the Constitution, so “Congress” was a different body — and it isn’t clear what the role of a “deputy” would have been. A quasi-permanent presence of a Cherokee representative? Or simply someone who would show up on a one-time basis to speak on behalf of the tribe?
The 1835 treaty, for its part, says the Cherokee are entitled to a delegate whenever Congress makes a provision for it — which hasn’t yet happened. So unless Congress acts to make provisions, there could be a court fight.
I would hope that Congress is fully prepared today to give effect to the spirit of the promises that the United States made to the Cherokee Nation long ago. It’s not just the right thing to do; the legal arguments in favor of the Cherokee are actually pretty strong.
The current idea of invoking the old treaties to get non-voting representation in Congress dates back to 1995, when it was suggested in a law review article by a law student who was interning for the Cherokee Nation. It’s made politically plausible by the often-overlooked reality that there are already six non-voting delegates in Congress representing American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, the U.S. Virgin Islands, and Washington, D.C.
The Hopewell Treaty of 1785 says: “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.”
Here’s where it gets a little tricky. The “Congress” in question was the one created under the Articles of Confederation. One could argue that this agreement does not apply to the Congress created under the Constitution, ratified in 1789. And there were major differences between the two bodies: Congress under the Articles featured equal representation of all the states, and its powers were sharply limited compared to the powers exercised by Congress under that Constitution.
Despite these differences, the treaty promised from 1785 should still apply. After all, the United States was the same country in legal terms after the Constitution was ratified as it was before. Its promises, including its treaties, were guaranteed in the new Constitution in the so-called Supremacy Clause:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”
From the standpoint of the Cherokee Nation as a treaty partner, the United States should have to keep its promise regardless of what internal changes it made to the institution called Congress. A principle of treaty interpretation recognized by the Supreme Court says that treaty provisions should be interpreted in favor of Native American treaty partners. In practice, however, the federal courts have found ways to avoid implementing provisions favorable to tribes.
That leaves the 1835 treaty. The relevant provision of this Treaty of New Echota reads: “The Cherokee nation having already made great progress in civilization … it is stipulated that they shall be entitled to a delegate in the House of Representatives of the United States whenever Congress shall make provision for the same.”
This provision speaks clearly of a “delegate” like the delegates from the various U.S. territories who now sit in Congress without voting. The trouble is the last few words, which on their face would seem to suggest that it is up to Congress to make the provision for the Cherokee delegate, and that if Congress does not do so, then the right to have a delegate does not exist.
If Congress chooses to make such provisions now, then it would not be necessary to fight about the meaning of the language of 1835. But if Congress does not act, and if the Cherokee nation were to sue, a court might be called upon to say what the treaty provision means.
The tribe could argue that, properly interpreted, the 1835 language makes it mandatory for Congress to provide for the delegate. The treaty uses the mandatory word “shall” twice. It says that the Indians “shall be entitled” to a delegate, which could be read to mean that they are guaranteed the right to representation. And even the statement that this will take place “whenever Congress shall” includes the mandatory magic word “shall.”
What’s more, if there is any ambiguity, this would seem to be an appropriate time to apply the Supreme Court’s direction calling for interpretation in favor of the tribe.
The legacy of the U.S. government’s conduct toward the first people to occupy the North American continent remains a deep, unresolved moral challenge to the fairness and justice of our constitutional form of government. We should be grateful to the Cherokee nation for giving Congress an opportunity to keep at least one of many promises made to native peoples. Congress should seize the chance, put the legal technicalities aside, and seat the Cherokee delegate as soon as possible.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.