Representation for Removal? The Cherokee's Claim to a Congressional Delegate Assessed Under the Canons of Construction

NORTH CAROLINA LAW REVIEW Volume 99 Number 1 Article 6 12-1-2020 Representation for Removal? The Cherokee's Claim to a Congressional Delegate Assessed Under the Canons of Construction Patrick A. Wolf Follow this and additional works at: https://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Patrick A. Wolf, Representation for Removal? The Cherokee's Claim to a Congressional Delegate Assessed Under the Canons of Construction, 99 N.C. L. REV. 223 (). Available at: https://scholarship.law.unc.edu/nclr/vol99/iss1/6 This Recent Developments is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact . 99 N.C. L. REV. 223 (2020) Representation for Removal? The Cherokee’s Claim to a Congressional Delegate Assessed Under the Canons of Construction * The Treaty of New Echota is the pact between the Cherokee Nation and the United States which served as the legal basis for Cherokee removal via the infamous Trail of Tears. The Treaty of New Echota contains several promises made by the United States in exchange for the Cherokee ancestral land in North Carolina and several other southern states. One of these promises, found in Article 7, states 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.” Article 7 has been the recent subject of controversy due to its textual ambiguity and historical implications of possible Native American representation at the federal level. These potential ramifications, coupled with the mounting pressure from the Cherokee Nation claiming that Article 7 grants the Tribe an affirmative right to a delegate, warrants an investigation into Article 7’s effect. From its robust body of precedent on Native American treaty interpretation, the U.S. Supreme Court has developed a set of rules called the Indian law canons of construction which federal courts apply when the effect of a treaty involving Native Americans is at issue. This Recent Development sets out to shed light on the implications of Article 7’s delegate promise by applying the canons to its text to ultimately determine whether the United States is legally bound to grant the Cherokee Nation’s request for a delegate in the U.S. House of Representatives, just as a federal court would do if this issue came before the judiciary. INTRODUCTION ** On August 22, 2019, speaking to a crowd of people in front of the Cherokee National History Museum in Tahlequah, Oklahoma, Chuck Hoskin * © 2020 Patrick A. Wolf. ** Currently, there is an ongoing discussion surrounding what terminology is correct and most respectful to the preferences of individuals of Native American descent regarding how such individuals prefer to be referenced, and there is no simple answer to this question. Frequently Asked Questions, SMITHSONIAN NAT’L MUSEUM AM. INDIAN, https://americanindian.si.edu/nk360/faq/did-youknow [https://perma.cc/TU8K-4XCT]; see also Amanda Blackhorse, Blackhorse: Do You Prefer ‘Native American’ or ‘American Indian’?, INDIAN COUNTRY TODAY (May 22, 2015), https://indiancountrytoday.com/archive/blackhorse-do-you-prefer-native-american-or-americanindian-kHWRPJqIGU6X3FTVdMi9EQ [https://perma.cc/CAD5-UJTH]. In this Recent Development, I have decided to use the term “Native American” when referencing individuals of Native American descent because, while some tribes of Native American descent disfavor this term, “Native American” remains widely accepted and used. Blackhorse, supra; Frequently Asked Questions, supra. Although many individuals of Native American descent refer to themselves as 99 N.C. L. REV. 223 (2020) 224 NORTH CAROLINA LAW REVIEW [Vol. 99 Jr., the Principal Chief of the Cherokee Nation (“Principal Chief Hoskin”), announced that he planned to place a Cherokee Nation (“Cherokee”) delegate in the U.S House of Representatives as part of his “First 100 Days in Office” initiative. 1 If Principal Chief Hoskin’s initiative comes to fruition, it would be a monumental moment for the Cherokee. Though the delegate would likely be nonvoting, 2 this would still give the Cherokee an opportunity to voice their opinions in a meaningful way—something that has been sorely lacking since the eighteenth century. 3 Principal Chief Hoskin subsequently nominated Kim “Indian,” the term “Native American” better encompasses the preferences of indigenous people as a whole. However, much of the U.S. legal system’s jurisprudence uses the term “Indian.” Therefore, this Recent Development will use the term “Native American” throughout to reference indigenous people and will use “Indian” only when citing legal doctrines or directly quoting language from sources. 1. Lindsey Bark, Teehee Nominated as Cherokee Nation’s Delegate to Congress, CHEROKEE PHOENIX (Aug. 23, 2019), https://www.cherokeephoenix.org/Article/index/103477 [https://perma.cc/ BNV8-QVSR]; see also Cherokee Nation Announces Appointment of Teehee as Delegate to Congress, CLAREMORE DAILY PROGRESS (Aug. 22, 2019), https://www.claremoreprogress.com/news/cherokeenation-announces-appointment-of-teehee-as-delegate-to-congress/article_9ae2a6f0-c52b-11e9-87972f3a2ee6b3ba.html [https://perma.cc/8FNU-CFVZ]. While it has recently been set in motion, Principal Chief Hoskin’s plan to place a delegate in the U.S. House of Representatives is not exactly new; several Cherokee tribal members have had this goal in mind for decades now. In fact, Principal Chief Hoskin ensured that a delegate provision was included in the 1999 Cherokee Constitution so the Cherokee would unanimously support the plan. Chuck Hoskin Jr., Cherokee Nation’s Historic Delegate to Congress, TAHLEQUAH DAILY PRESS (Sept. 19, 2019), https://www.tahlequahdailypress.com/news/ cherokee-nation-s-historic-delegate-to-congress/article_69ebc83b-f5fb-5f88-be5f-b6fddc1e02fc.html [https://perma.cc/ZN6E-ZD7Y?type=image] (“As a young man, I was a delegate at the 1999 Cherokee Constitutional Convention and made sure a delegate provision was included in our Constitution . . . .”). 2. See Ezra Rosser, The Nature of Representation: The Cherokee Right to a Congressional Delegate, 15 B.U. PUB. INT. L.J. 91, 127–31 (2005) (discussing how the Cherokee delegate would be similar to the nonvoting representatives of American Samoa, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands). The delegate, if arranged like the delegates of American Samoa, the District of Columbia, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands, would be able to introduce legislation and voice opinions but not vote outside of individual committees. See CHRISTOPHER M. DAVIS, CONG. RSCH. SERV., DELEGATES TO THE U.S. CONGRESS: HISTORY AND CURRENT STATUS 1, 6 (2015), https://fas.org/sgp/crs/misc/R40 (...truncated)