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

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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
2005] THE NATURE OF REPRESENTATION 129 acts creating office of Delegates contain within their provisions explicit qualifications similar to those constitutionally defined for members.” 187 Furthermore, the groups represented by non-voting delegates can differ in ways not permitted for full delegates: These five [non-voting delegates] represent areas and constituents with vastly different political, cultural, geographic, and economic ties to the rest of the United States. The populations of these areas range from 47,000 in American Samoa to 3.6 million in Puerto Rico. By comparison the average population of the congressional districts represented by the thirteen Member plaintiffs here is approximately 569,864. 188 The non-voting delegates also differ from one another. The variation between peoples having a right to a non-voting delegate, including the Cherokee people, is shown in the following chart: territorial delegates). 187 2DESCHLER’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, supra note 180, at 39. 188 Id. at 134 (noting in a footnote that under Wesberry v. Sanders, 376 U.S. 1, 8-9 (1964), congressional districts must possess equal number of people “as nearly as [is] practicable”).
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