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

140 PUBLIC INTEREST LAW JOURNAL [Vol. 15
fact that “in the Cherokee Nation, having a little Indian blood is a valuable
commodity, the stuff of power that ensures a political identity, voting rights as a
Cherokee citizen, and access to a variety of economic resources.” 254 But it is also
an overstatement to suggest that, among Cherokees, the racial characteristics of
those who are defined as having a right to a delegate are unimportant since they
have the potential to cause disputes. 255
2. Opposition from Other Tribes
The Cherokee nation will probably face opposition from many other Indian tribes
if it attempts to seat its Congressional delegate. A delegate representing only the
Cherokees would likely seem unfair to other tribes who, like the Cherokees, were
pushed from their homelands but were not afforded a delegate right in their removal
treaties (if they signed a treaty at all). Even for tribes never forced off their
homelands, a Cherokee delegate arguably threatens the interests of all non-Cherokee
tribes. Such a delegate would be the de facto voice of the Indian community in
Washington, D.C., and non-Cherokee tribes would rightly be concerned that such a
delegate might favor the Cherokee Nation at the expense of non-Cherokee tribal
nations.
The Cherokee response to non-Cherokee tribal opposition must be twofold.
First, the Cherokee Nation must educate other tribes on the legal and historical
reasons why the Cherokees have a unique delegate right. Second, the Cherokee
Nation must be willing to consider non-Cherokee suggestions regarding the
Cherokee delegate. Non-Cherokees will likely highlight the Cherokee delegate’s
de facto role as representative for all Indians to argue that the delegate should be a
pan-Indian delegate rather than a Cherokee delegate. The Cherokee Nation’s
seemingly unique right, under this view, reflects the shared trauma of Indian
oppression and the efforts of many tribes to resist that oppression. 256
The practical and political challenges of Indian approval of a Pan-Indian delegate
are perhaps as daunting as the non-Cherokee tribal opposition to a solely Cherokee
delegate. As holders of the delegate right, the Cherokees would probably object to
such an arrangement based both upon principle, since it is their historical right, and
upon the likely effect on the Cherokee Nation. In 1866, the Cherokee nation
“strenuously objected” to a territorial Indian council with equal tribal
254 STURM, supra note 20, at 105.
255 See Eric Lemont, Overcoming the Politics of Reform: The Story of the Cherokee
Nation of Oklahoma Constitutional Convention, 28 AM. INDIAN L. REV. 1, 25-28
(2003/2004) (describing the recent debate on Cherokee blood quantum in the context of
the Cherokees’ recent efforts to form a new Constitution).
256 Resistance is the crucial trait, for it was U.S. desire that the Cherokees accept the
“liberal” treaty terms that led to New Echota’s Article 7, but perhaps the U.S. would
not have been so “liberal” had the U.S. government been able to fully focus on the
Cherokee Nation instead of being partly tied down by having to deal with other tribes.