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

126 PUBLIC INTEREST LAW JOURNAL [Vol. 15
The Confederate Treaty’s repetition of the delegate provision is significant
because of the new role the Cherokees played in the negotiations leading up to the
Treaty. The Cherokees for the first time had sufficient power to help determine the
shape of the Treaty:
Never before had they been in a position to do anything more than accept what
was offered them. Their services were sorely needed by the Confederacy and
the diplomatic Cherokees were not slow to take advantage of their opportunity
and make the best of the situation. The treaty seems to represent what they
considered an ideal relationship. 173
With the Confederate Treaty negotiations, “[f]or a brief period the white man had
thrown aside the role of superiority which he had assumed in his previous relations
with the Indians.” 174
John Ross’s discussion of the Confederate Treaty’s delegate right in his 1861
Annual Message raises more questions than it answers. In Ross’s words, “[the
Treaty] gives us a Delegate in Congress on the same footing with the Delegates
from the Territories by which our interests can be represented, a right which has
long been withheld from the Nation and which has imposed upon it a large expense
and great injustice.” 175 It is not clear, however, from the remaining records between
1835-1861, including Ross’s own writings, why Ross described the delegate right
as having been “withheld.” 176
The delegate promise contained in Article 7 of the Treaty of New Echota
deserves the importance and permanence that was intended to accompany it and that
is contained in the Confederate acceptance of a delegate. 177 When Mason gave his
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173
MORRIS L. WARDELL, APOLITICAL HISTORY OF THE CHEROKEE NATION 1838-1907,
at 139 (Univ. ofOkla. Press 1977) (1938).
174
McNeil, supra note 170, at 420.
175
John Ross, Annual Message to Friends and Fellow Citizens (Oct.9,1861),in 2
THE PAPERS OF CHIEF JOHN ROSS, supra note 14, at 494-95.
176
For Ross, the most significant provision had to be one defining who was
authorized to negotiate on behalf of the Cherokees:
The Confederacy agreed never to enter any compact, treaty, or agreement with the
Cherokees except with the constitutional authorities of the Nation. Had such
provision been placed in their first treaties with the United States, the Treaty of
1835 would not have been made and the Ridge-Boudinot murdersprobably would
not have occurred.
WARDELL, supra note 173, at 139.
177 For a contrary reading suggesting Congress has the right to refuse the delegate
and is not obligated, see Delegate from Indian Territory: Hearing Before the H.
Comm. on Territories, 58th Cong. (1905) (Kansas Representative, Charles Curtis,
suggesting that the House is not obligated by the treaty but instead, “upon the request
of the Cherokees alone you would have a right to give [a delegate from Indian
Territory—Oklahoma] a seat.”) For different opinions about Congressional right or