the nature of representation: the cherokee right ... - Boston University

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120 PUBLIC INTEREST LAW JOURNAL [Vol. 15 Georgia. 151 Ross should not be faulted for not clearly laying out a series of propositions, for much of his work was consumed by his attempt to get the U.S. government to recognize its responsibilities under prior treaties concluded with the Cherokees. Indeed, the limited Cherokee proposals—partial land concessions or outright land sale—ensure that the particular treaty articles represent the U.S. intent to a greater extent than they represent Cherokee intent. Ironically, although initially a negative as far as the Cherokee were concerned, the limited Cherokee proposals mean that Cherokee calls for a Congressional delegate stand on firmer ground in that now the U.S. government cannot claim that the U.S. intent was not contained in the delegate provision. 152 1. The Deputy Promise Article 7’s delegate right reflects a history of earlier promises that closely resemble it but fail to obligate the U.S. government in the same manner that Article 7 does. Therefore, Article 7 might best be understood for what it is not: it is not the lesser, similar, promises that preceded it. In 1778, the U.S. signed a treaty with the Delawares that included the following terms: And it is further agreed on between the contracting parties should it for the future be found conducive for the mutual interest of both parties to invite any other tribes who have been friends to the interest of the United States, to join 151 Wilkinson and Volkman explain: “It is important to recognize that the American Indian’s treaty rights are not ‘gifts’ or ‘grants.’ Indians fought hard, bargained extensively, and made major concessions in return for such rights. Treaties can, therefore, properly be regarded as negotiated contracts of a high order.” Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows or Grass Grows Upon the Earth”—How Long a Time is That?, 63 CAL.L.REV. 601, 603 (1975). 152 The terms in the New Echota treaty did not differ from those general terms which the U.S. treaty negotiator, Schermerhorn, was sent under Presidential authority to secure; consequently, the charge that Article 7 represents only Schermerhorn’s intent and not the intent of the U.S. government cannot be made. The Secretary of War’s charge to Schermerhorn and Governor Carroll, is indicative of the closeness between the U.S. intent and the treaty: “The provisional treaty contains the general terms which the President is disposed to offer to the Indians, and he is desirous that the Cherokee people should assent to this arrangement without making any change in its stipulations.” Letter from Lew Cass, Secretary of War, to J.F. Schermerhorn and Gov. William Carroll (Apr.2,1835),in TREATY WITH THE CHEROKEE INDIANS, 24th Cong., 1st Sess., 15-18, at 15. Similarly, Schermerhorn’s journal reflects the crystallization of U.S. intent in the terms agreed upon at New Echota: “I will only add that, in the other articles of the treaty [including Article 7], no material alterations will be found from the propositions as originally drawn up.” A journal of the proceedings of the Council held at New Echota, Georgia Dec.21-30, 1835, with the Cherokee people by John F. Schermerhorn, Commissioner on the part of the United States to treat with the Cherokees east, in TREATY WITH THE CHEROKEE INDIANS, 24th Cong., 1st Sess., 20-27 at 24.
2005] THE NATURE OF REPRESENTATION 121 the present confederation, and to form a state whereof the Delaware nation shall be the head, and have a representation in Congress: Provided, nothing contained in this article to be considered as conclusive until it meets with the approbation of Congress. 153 More important than the loose promise of representation are the qualifications placed on this particular promise: the representation is only associated with future statehood and no part of the promise is “conclusive” until Congress approves of it. 154 It is not clear whether under the 1778 treaty the Delawares would have any present rights, and similarly the Cherokee Treaty of Hopewell in 1785 does not provide any real right to representation in Congress. Article XII of the Treaty of Hopewell reads: “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.” 155 The meaning of the “right to send a deputy” was a side issue addressed in Cherokee Nation v. Georgia, with the Supreme Court ultimately deciding that a deputy right was not a representative right. 156 In Cherokee Nation, the Justices wrote in dicta that the right to send a deputy did not impose upon the U.S. government any obligation to the Cherokees in terms of their participation in the national government. 157 However, the right was not devoid of meaning. Writing for the majority, Chief Justice Marshall felt compelled to highlight the singular nature of the promise: “The Cherokees in particular were allowed by the treaty of Hopewell, which preceded the constitution, ‘to send a deputy of their choice, whenever they think fit, to congress.’” 158 In his dissent, Justice Baldwin observed the potentially farther reaching, though complicated, nature of the promise when he stated, “the meaning of the words ‘deputy to congress’ in the twelfth article may be as a person having a right to sit in that body, as at that time it was composed of delegates or deputies from the states, not as at present, representatives of the people of the states; or it may be as 153 TreatywiththeDelawares,U.S.-Delawares,Sept.17,1778,7Stat.13. 154 The Delaware’s treaty promise of representation in Congress upon formation of a state, once it “meets with the approbation of Congress,” was satisfied according to the influential removal era William Penn essays, for as Evarts writes, “That [Article 6] did meet with the approbation of Congress is manifest; because it is now part of a national treaty.” JEREMIAH EVARTS, ESSAYS ON THE PRESENT CRISIS IN THE CONDITION OF THE AMERICAN INDIANS (signed by William Penn, 1829), reprinted in CHEROKEE REMOVAL: THE “WILLIAM PENN” ESSAYS AND OTHER WRITINGS 93 (Francis Paul Prucha ed., 1981). 155 Treaty with the Cherokee, U.S.-Cherokee, Nov. 28, 1785, 7 Stat. 18. 156 30 U.S. (5 Pet.) 1, 17 (1831). 157 Id.; but see, House Debate on the Indian Removal Question, supra note 29, (statement of Rep. Henry Storrs) (citing the Deputy promise in the Congressional debates on removal as evidence that the Indians were not mere “serfs” transferred from the English crown to the U.S. government). 158 Cherokee Nation, 30 U.S. (5 Pet.) at 17.
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