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

124 PUBLIC INTEREST LAW JOURNAL [Vol. 15
Executive “is incompetent to grant” a delegate privilege because “all the branches
of Government” areneededforsuchadecisioncouldbeusedbydetractorsofthe
New Echota promise in efforts to invalidate the promise. However, by going on to
say that Congress could make such a decision, Article III indicates that the New
Echota promise is valid, for Congress approved the Treaty in its entirety. Article
III fails to provide any definite promise to the Cherokees and Article IV includes
only the lesser agent promise: “A wish is also expressed that an agent, to represent
the rights and interests of the Cherokees, may remain at the city of Washington
after a removal takes place. This request is admitted.” 166 The fourth article
demonstrates both that the Cherokees saw the promise of an agent and a promise of
a delegate as distinct promises and that the U.S. government at the time of this
agreement was not yet prepared to go as far as it would go in the 1835 New Echota
Treaty in establishing a Cherokee delegate.
3. The Delegate Promise
In 1835, as a part of a more general treaty removing the Cherokees, the U.S.
government granted the Cherokees a right to a delegate to Congress. This promise
resides in Article 7 of the New Echota Treaty:
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. 167
The promise reflects the liberality that the U.S. government expressed as U.S.
policy and also acknowledged as fundamental for the protection of Cherokee rights.
Unlike the earlier Treaty with the Delawares and the deputy and agent promises,
this promise is an affirmative right, subject only to minor qualification. Critics of
the promise initially can highlight “whenever Congress shall make provision for
the same” to suggest the promise is as meaningless as the Supreme Court found the
deputy right to be. But the differences between this promise and the earlier, lesser
promises demonstrate that being “entitled to a delegate” is an affirmative right
granted to the Cherokees.
There are conflicting histories regarding the right versus obligation to seat
SATZ, supra note 85, at 217.
166 Articles of agreement entered into between John H. Eaton, Commissioner on the
part of the United States, and the Cherokee delegation of Indians, June 19, 1834, S. Exec.
Doc. No. 23-7, 23d Cong., 1st Sess., at 4. The agent promise included payment terms
from the U.S. government and a provision that the President could terminate the agent’s
post after the initial five years.
167 Treaty with the Cherokee, supra note 1, at 482 (emphasis added); see also
Agreement with the Cherokee, Art. 8, U.S.-Cherokee, Mar. 14, 1835, Senate Doc. No.
120, 25th Congress, 2d session, p. 459. However, the Mar. 14, 1835 agreement is not a
ratified treaty, and therefore the New Echota Treaty is the text on which the promise
rests.