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

2005] THE NATURE OF REPRESENTATION 131
As this chart shows, the Cherokee delegate would represent a population in line
with that of the other non-voting delegates.
IV. CHALLENGES TO THE DELEGATE RIGHT
This Section examines the three principal arguments against Cherokee exercise of
their treaty-based right to a Congressional Delegate. First, that the right has been
lost; second, that there is a definitional problem regarding whom the delegate
represents; and finally, that exercising the delegate right would infringe on the
constitutional rights of non-Cherokees. 207
The purpose of examining these
criticisms is both practical—to present the challenges facing the Cherokee Nation
should it pursue its treaty right—and intellectual—to use the possibility of the
Cherokee delegate as a vehicle for exploring the nature of American democratic
representation. While the history of removal and of the Treaty of New Echota
negotiations are important for understanding the basis for the Cherokee delegate
INDIANS, 24th Cong., 1st Sess., 54-61.
2) “The number of the Cherokee tribe of Indians yet remaining east of the Mississippi
river is supposed to be fourteen thousand, and the number of those who have emigrated
west of that river, in conformity with the late treaty between that tribe and the United
States, is two thousand one hundred and three.” Letter from Joel R. Poinsett, Sec. of War,
to James K. Polk, Speaker of the House (Jan. 8, 1838), microformed on CIS House 325
H.doc. 82, 1 (Cong. Info. Serv.).
3) Schermerhorn also had a higher estimate in a chart with 16,542 total Cherokees in
North Carolina, Tennessee, Alabama, and Georgia; and 201 Whites connected by
marriage. Letter from John F. Schermerhorn to Lewis Cass (Mar. 3, 1836), in TREATY WITH
THE CHEROKEE INDIANS, 24th Cong., 1st Sess., 54-61.
4) According to a Cherokee population historian in 1835 there were 21,542
including 5,000 already emigrated West. RUSSELL THORNTON, THE CHEROKEES: A
POPULATION HISTORY 51 (1990).
5) John Ross, arguably the person with the best sense at the time, wrote, “The
population of the Cherokee Nation East of the Mississippi is between 16 & 17,000 . ..
[and with the Western Cherokees] the whole population would then be about 20000
souls.” Letter from John Ross to Joaquin Maria del Castillo y Lanzas (Mar. 22, 1835), in
1THE PAPERS OF CHIEF JOHN ROSS, supra note 14, at 335.
206 This is the population of the Cherokee Nation of Oklahoma, not the number of all
Cherokees. Eric Lemont, Developing Effective Processes of American Indian
Constitutional and Governmental Reform: Lessons from the Cherokee Nation of
Oklahoma, Hualapai Nation, Navajo Nation, and Northern Cheyenne Tribe, 26AM.
INDIAN L. REV. 147, 156 (2001/2002). Additionally, there were 2,475,956, or 0.9% of
the U.S. Population in 2000 identified as “American Indian and Alaska Native.”
Population by Race and Hispanic or Latino Origin, for All Ages and for 18 Years and
Over, for the United States: 2000, http://www.census.gov/population/cen2000/phct1/tab01.pdf.
207 The examination of these three arguments is not meant to foreclose or deny the
existence of other arguments against the Cherokee delegate.