Demanding a Voice in Our Own Best Interest: A Call for a Delegate of the Cherokee Nation to the United States House of Representatives

American Indian Law Review Volume 20 | Number 1 1-1-1995 Demanding a Voice in Our Own Best Interest: A Call for a Delegate of the Cherokee Nation to the United States House of Representatives Jack Blair Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons Recommended Citation Jack Blair, Demanding a Voice in Our Own Best Interest: A Call for a Delegate of the Cherokee Nation to the United States House of Representatives, 20 Am. Indian L. Rev. 225 (1995), https://digitalcommons.law.ou.edu/ailr/vol20/iss1/7 This Comment is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . DEMANDING A VOICE IN OUR OWN BEST INTEREST: A CALL FOR A DELEGATE OF THE CHEROKEE NATION TO THE UNITED STATES HOUSE OF REPRESENTATIVES Jack Blair* [Hiold fast to the faith of treaties which by mutual consent have been solemnly pledged between our Nation and the United States. [T]he laws and treatiesfor the security and protection of our rights [are] the only weapons with which we must defend them. [iff it has been our misfortune to suffer wrongs from the hands of our white brethren we should not despair of having justice still extended to us by the United States. - Chief John Ross, in a letter dated Oct. 18, 1837, one year before removal.' Introduction Over the course of two hundred years, the United States has subjected the Cherokee Nation to a most subtle and relentless form of conquest: an infinitely complex web of legal doctrine. The law first subordinated the Cherokee Nation, then brought it to the edge of political extinction, and now leaves it merely dependent. The one consistency in federal policy has been the reluctance to allow the Cherokee Nation to govern itself. In assuming its paternal role, the United States has neglected the basic principles of representation upon which this country itself was founded. Despite promises to the contrary, the Cherokee Nation is left without a voice in its own best interest. The current relationship between Indian nations, generally, and the United States government has evolved into a unique conglomeration of customs, cases, treaties, and statutes. Perhaps in no other area of the law is the precedent so diverse and the doctrine so fluid The evolution of American Indian law has been an attempt to reconcile several conflicting interests: * B.A., Oklahoma State University, J.D. expected 1996, University of Oklahoma College of Law. This project was initiated through an internship at the Cherokee Nation Department of Justice in 1994. The author's work was supervised, edited, and submitted for publication by Chadwick Smith, Director of the Justice Office and Prosecutor in the Cherokee Nation District Court. 1. 1 PAPERS OF CHIEF JOHN Ross 523 (Gary Moulton ed. 1985). 2. See PETER MATIHIESEN Er AL., EXILED IN THE LAND OF THE FREE: DEMOCRACY, INDIAN NATIONS, AND THE CONSTITUrION (1992). Published by University of Oklahoma College of Law Digital Commons, 1995 AMERICAN INDIAN LAW REVIEW [Vol. 20 conquest and sovereignty; uniformity and diversity; paternalism and autonomy. Today, Indian nations are asserting their rights to selfdetermination with renewed vitality, but they do so only at the allowance of the federal government. As the law stands, Congress has assumed plenary authority over the governance of Indian nations, and the courts have generally affirmed that authority.3 The scope of Congress' authority is limited only by the Due Process and Just Compensation Clauses of the Constitution, as well as a broadly defined "trust" responsibility.4 In defining the breadth of Congress' plenary power, the Supreme Court has stated that tribal autonomy exists "only at the sufferance of Congress and is subject to complete defeasance."5 Despite the questionable bases for Congress' plenary power, it is, for now, a practical reality. If Congress has the power to dictate the terms of the governance of the Cherokee Nation, or to disband it altogether, why does the Cherokee Nation have no representation in that body to speak for its interests? This question is especially perplexing considering the solemn covenants made by the United States that provisions would be made for such representation.6 Congress' plenary authority over the Cherokee Nation without representation contradicts every traditional American principle of fairness in government. The most basic of these principles is that Government's authority arises from the consent of the governed. The Declaration of Independence clearly outlines the foundation of a representative democracy: "Governments are instituted among Men, deriving their just Powers from the consent of the governed, that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its, foundation on such principles.. .. "' The current Administration has expressed a desire for greater cooperation with tribal governments when Indian policy decisions are made. In a recent address to Native American leaders, President Clinton stated: "The important thing is to create policies that give every tribe a chance to have a strong economy in the long run; to develop the will and the consistency to stick with those policies over time; and to keep working and talking together."' As the 3. Id. at 318. 4. See. e.g., Antoine v. Washington, 420 U.S. 194 (1975); U.S v. Kagama, 118 U.S. 375 (1886). 5. United States v. Wheeler, 435 U.S. 313, 323 (1978). 6. These promises are outlined in two separate treaties between the United States government and the Cherokee Nation. Treaty with the Cherokees, Nov. 28, 1785, U.S.-Cherokee Nation, art. 12, 7 Stat. 18, 20 [hereinafter Treaty of Hopewell], replrintedin 2 INDIAN AFFAIRS: LAWS AND TREATIES (Charles J. Kappler ed., photo. reprint 1975) (1904) [hereinafter KAP'PLER'S]; Treaty with the Cherokees, Dec. 29, 1835, U.S.-Cherokee Nation, art. 7, 7 Stat. 478, 482 [hereinafter Treaty of New Echota], reprinted in KAPPLER'S, supra, at 442-43. 7. THn DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 8. PresidentBill Clinton'sAddress to Native American Leaders, NATIVE PEOPLES, Summer https://digitalcommons.law.ou.edu/ailr/vol20/iss1/7 No. 1] COMMENTS President makes known his desire for a mutually respectful, long term relationship between Indian nations and the federal government, the United States Congress has the ability to insure cooperation for years to come. A provision for a delegate from the Cherokee Nation to the House of Representatives would be a tangible step toward putting the President's words into action. Not only would Congress be insuring a new relationship of advice and consent, it would be fulfilling a 200- (...truncated)