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

128 PUBLIC INTEREST LAW JOURNAL [Vol. 15
Cherokees most interested in obtaining representation in the House have been
urging the narrow reading of the delegate promise. 181 Such a representative is a
delegate with “a seat in the House of Representatives, with the right of debate, but
not of voting.” 182
The House created non-voting delegates “on the theory that it might admit to
the floor of debate merely anybody whom it might choose.” Over time, the
meanings and qualifications of the non-voting delegates grew more defined. 183 The
rights and powers possessed by non-voting delegates are numerous and wide
ranging:“[R]egularofficespaceinHouseofficebuildings...,[the]righttospeak
ontheflooroftheHouseaswellasinstandingcommittees...,[andthe]rightto
vote in committee and in subcommittee.” 184 Congress can even grant delegates the
right to votes in the Committee of the Whole, where much of the house business is
conducted, so long as the votes are not decisive through the operation of a “savings
clause.” The Judicial branch upheld this right on review. 185
Differences exist between non-voting delegates and full delegates both in terms of
the requirements for the individual representative and the nature of the population
represented. The age, residency, and citizenship rules on full delegate qualifications
do not explicitly apply to the non-voting delegates. 186 Nevertheless, “most recent
a list of delegates and a description of their powers, See Michel v. Anderson, 817 F.
Supp. 126 (D.D.C. 1993).
181
This was the conclusion of the participants at the Cherokee Delegate Strategic
Planning Summit in Tahlequah, Oklahoma, Aug. 2002 (notes on file with the author).
See, e.g., 137 Cong. Rec. H2464 (daily ed. Apr. 23, 1991) (statement of delegate Mr.
Faleomavaega from the American Samoa) (“I submit, Mr. Speaker, that by establishing
native American representation in Congress we could perhaps be salvaging the only
promise ever made to the native Americans that can still be kept.”)
182
See Northwest Ordinance of 1787, 1789, 1 Stat. 50, 52 (creating the post of
territorial delegate); see e.g., 2 U.S.C. § 25(a) (2000) (wording of the power and
qualifications for the District of Columbia delegate); Our American Government, H.R.
Doc. No. 106-216, at 21 (2000) (“Delegates and Resident Commissioners may
participateinHousedebatebuttheyarenotpermittedtovoteonthefloor. Allserveon
committeesof the House and possess powers and privileges equal to other Membersin committee, including the right to vote in committee.”)
183
Hinds, supra note 177, at I § 400.
184
Jamin B. Raskin, Is This America? The District of Columbia and the Right to
Vote,34Harv.C.R.-C.L.L.Rev.39,82-83(1999). See also, 2DESCHLER’S PRECEDENTS
OF THE HOUSE OF REPRESENTATIVES, supra note 180, at ch. 7 § 3, for a full account of
delegates’ authority and rights, including the right to an equal salary as members.
185
See Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994) (aff’g Michel,817F.Supp.
126).
186
Id. Each non-voting delegate is subject to individual eligibility qualifications.
See 48 USCS § 1733 (2001). American Samoa qualifications: a person must be 25 years
old, must “owe allegiance to the United States,” must be an inhabitant of American
Samoa, and must not be not a candidate for other office. See, e.g., Hinds, supra note 177,
I § 421 (stating that the laws of the United States do not impose qualifications for