[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
LEGAL AND PROCEDURAL FACTORS RELATED TO SEATING A CHEROKEE DELEGATE IN
THE U.S. HOUSE OF REPRESENTATIVES
=======================================================================
HEARING
before the
COMMITTEE ON RULES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
WEDNESDAY, NOVEMBER 16, 2022
__________
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via http://govinfo.gov
Printed for the use of the Committee on Rules
______
U.S. GOVERNMENT PUBLISHING OFFICE
50-345 WASHINGTON : 2023
COMMITTEE ON RULES
James P. McGovern, Massachusetts, Chairman
NORMA J. TORRES, California TOM COLE, Oklahoma
ED PERLMUTTER, Colorado Ranking Republican
JAMIE RASKIN, Maryland MICHAEL C. BURGESS, Texas
MARY GAY SCANLON, Pennsylvania GUY RESCHENTHALER, Pennsylvania
JOSEPH D. MORELLE, New York MICHELLE FISCHBACH, Minnesota
MARK DeSAULNIER, California
DEBORAH K. ROSS, North Carolina
JOE NEGUSE, Colorado
DON SISSON, Staff Director
KELLY DIXON CHAMBERS, Minority Staff Director
------
Subcommittee on Legislative and Budget Process
JOSEPH D. MORELLE, New York, Chair
MARY GAY SCANLON, Pennsylvania MICHAEL C. BURGESS, Texas
DEBORAH K. ROSS, North Carolina Ranking Republican
JOE NEGUSE, Colorado TOM COLE, Oklahoma
JAMES P. McGOVERN, Massachusetts
------
Subcommittee on Rules and Organization of the House
NORMA J. TORRES, California, Chair
ED PERLMUTTER, Colorado GUY RESCHENTHALER, Pennsylvania
Vice Chair Ranking Republican
MARY GAY SCANLON, Pennsylvania TOM COLE, Oklahoma
JOSEPH D. MORELLE, New York
JAMES P. McGOVERN, Massachusetts
------
Subcommittee on Expedited Procedures
JAMIE RASKIN, Maryland, Chair
DEBORAH K. ROSS, North Carolina MICHELLE FISCHBACH, Minnesota
Vice Chair Ranking Republican
NORMA J. TORRES, California TOM COLE, Oklahoma
MARK DeSAULNIER, California
JAMES P. McGOVERN, Massachusetts
C O N T E N T S
----------
November 16, 2022
Opening Statements:
Page
Hon. James P. McGovern, a Representative in Congress from the
State of Massachusetts and Chair of the Committee on Rules. 1
Hon. Tom Cole, a Representative in Congress from the State of
Oklahoma and Ranking Member of the Committee on Rules...... 2
Witness Testimony:
Chief Chuck Hoskin Jr., Principal Chief, Cherokee Nation..... 4
Prepared Statement....................................... 7
Professor Lindsay Robertson, Chickasaw Nation Endowed Chair
in Native American Law, College of Law at the University of
Oklahoma................................................... 12
Prepared Statement....................................... 14
Ms, Mainon A. Schwartz, Legislative Attorney, Congressional
Research Service........................................... 16
Prepared Statement....................................... 18
Additional Material Submitted for the Record:
Letter from Choctaw Nation of Oklahoma, dated November 14,
2022....................................................... 64
Letter from Delaware Nation of Oklahoma, dated October 31,
2022....................................................... 68
Letter from United Keetoowah Band of Cherokee Indians in
Oklahoma, dated November 10, 2022.......................... 70
Letter from the Eastern Band of Cherokee Indians, dated
November 16, 2022.......................................... 75
Letter from Damario Solomon Simmons, Esq., M. Ed., dated
November 16, 2022.......................................... 79
Witness Bios and Truth in Testimony Forms.................... 81
LEGAL AND PROCEDURAL FACTORS RELATED TO SEATING A CHEROKEE NATION
DELEGATE IN THE U.S. HOUSE OF REPRESENTATIVES
----------
WEDNESDAY, NOVEMBER 16, 2022
House of Representatives,
Committee on Rules,
Washington, DC.
The committee met, pursuant to call, at 10:04 a.m., in Room
H-313, The Capitol, Hon. James P. McGovern [chairman of the
committee] presiding.
Present: Representatives McGovern, Torres, Raskin, Scanlon,
Morelle, DeSaulnier, Ross, Cole, Burgess, Reschenthaler, and
Fischbach.
The Chairman. All right. The Rules Committee will come to
order.
America's history with the indigenous people that are
native to this land is atrocious. There is no other way to put
it. It is appalling. Thankfully, it is becoming common to
acknowledge this publicly, whether that means recognizing
Native American Heritage month every November or pointing out
that this Capitol is built on the stolen land of the
Nacotchtank and Piscataway people who lived along the Potomac
River long before this country existed, but the truth is that
simply acknowledging this truth is not enough.
Words alone don't absolve us of the horrific injustices
brought on American Native communities at the hands of the U.S.
Government. Actions do. And that is why I am hopeful that
today's historic hearing opens a new door towards building
greater understanding and the possible inclusion of these
communities in Congress.
You know, in 1835, the U.S. Government and individuals from
the Cherokee Nation negotiated the Treaty of New Echota, an
agreement with this government that was ratified by the United
States Senate. The treaty which led to the forced removal of
the Cherokee from their homelands included a provision that
says that the Cherokee Nation, I quote, shall be entitled to a
delegate in the House of Representatives of the United States
whenever Congress shall make provision for the same, end quote.
It has been nearly 200 years, but I am proud that this
committee on this day at this hearing for the first time ever
is exploring procedural options for the potential
implementation of seating a Cherokee Nation Delegate. This is a
complicated issue, which is why we have experts with us today
to help answer questions and help us to find a way to move
forward.
And several other Tribes have also come forward to say that
they are entitled to a delegate as well. So while the
conversations we are having pertain solely to the Cherokee
Nation, we know that more work will have to be done to examine
this issue further.
I personally believe we need to find a way to honor our
treaty obligations with the Cherokee Nation, even though it
will be a potentially challenging road to get there, but we
need to honor those treaty obligations. And Congress should
find a way to make this happen.
And now let me turn to our ranking member, Mr. Cole, a
member of the Chickasaw Nation of Oklahoma and one of only a
few Native Americans serving in Congress right now, for his
remarks. I am proud to serve alongside of him every day but
especially today as he helps this institution navigate this
important issue.
Mr. Cole. Probably some days more than others, Mr.
Chairman, but this is a good day. And I want to thank you very
much, Mr. Chairman, and I want to thank my friend, Chief
Hoskin, for being here.
We are here today for an original jurisdiction hearing
examining the legal and procedural factors related to seating a
delegate from the Cherokee Nation in the House of
Representatives.
Before I continue my remarks, I want to personally thank
you, Mr. Chairman, for holding this hearing today. I am hopeful
that the discussions that we have today help lay the groundwork
for other committees of jurisdiction to examine this issue in
more detail. Regardless, today marks an important first step
toward examining the questions and the process surrounding the
seating of a delegate from the Cherokee Nation.
As a member of the Chickasaw Nation and co-chair of the
Congressional Native American Caucus, I have always voiced my
support for the Federal Government to honor its treaty
obligations. For far too long in our Nation's history, the
Federal Government accumulated a sorry record of making
promises to Tribes and then breaking those promises as soon as
it was expedient to do so. Only in recent years has the record
improved.
With today's hearing, we begin examination of a specific
promise made in the Treaty of New Echota in 1835, and I
certainly welcome the examination of this question by Congress.
But it seems clear from the language of the treaty that this
right is not self-executing and would require action by
Congress to implement. As we consider this, members of the
House have real questions about this issue, and the purpose of
today's hearing is to begin examining those questions in
detail.
In addition to basic procedural questions, these questions
will include: Are there other Tribes that have this right? Why
did the Tribe choose to select its delegate by council vote
rather than by vote of the Tribe? Are there concerns about
double representation resulting in constituents being
represented both by their geographic Member of Congress and by
a delegate from the Tribe? Is this arrangement constitutional,
and if so, what factors must be considered? How would the
seating of a delegate change the character of the House if it
did at all? And many more.
I list out these questions for our witnesses to discuss,
along with others that will assuredly come up during today's
hearing.
It is important to note that the right contained in the
treaty may be clear, but the resolution of those rights and how
they may be applied still require great examination and
consideration. If the House ultimately decides to move forward,
it will only do so after a bipartisan recognition of the claim
and a bipartisan process going forward. We should remember that
the Cherokee Nation is not the only Tribe that has or may have
this right, and the process we ultimately follow for this claim
may apply to others as well.
I am glad to see Tribes advocating for their treaties with
such conviction, and today's hearing represents a starting
point in that bipartisan process of recognizing Tribal treaty
rights. However, additional work and consideration is needed,
particularly by the other committees of jurisdiction. I hope
the work begun here today continues to carry the process
forward, ideally examining all such claims by Tribes that
possess them.
Finally, I wish to clean up a common misunderstanding about
the nature of today's hearing that I have seen reported in the
media. This is a hearing to give Congress an opportunity to
understand the issue of seating a delegate to represent the
Cherokee Nation. There is no vote on that issue today. Indeed,
at present, no legislation has been introduced on this issue.
Today's hearing is a good first step, but we have a long way to
go in the process. Indeed, until legislation is proposed and
the issue is taken up by all committees of original
jurisdiction, Congress is unlikely to act.
I thank our witnesses for appearing before us today in what
I think of is an historic hearing, and I look forward to their
testimony.
With that, Mr. Chairman, I yield back.
The Chairman. Thank you. And I thank the ranking member for
his opening statement. And I now want to introduce our
distinguished witnesses.
Chuck Hoskin, Jr., serves as the principal chief of the
Cherokee Nation. Prior to being elected to his role in 2019,
Chief Hoskin was Cherokee Nation's secretary of state and also
served as a member of the Council of the Cherokee Nation.
Lindsay Robertson is a professor at the University of
Oklahoma College of Law and an indigenous law center visiting
professor. He teaches classes in Federal Indian law,
constitutional law, and international and comparative
indigenous people's law, among other topics.
Mainon A. Schwartz is a legislative attorney in the
American Law Division of the Congressional Research Service. In
that capacity, Ms. Schwartz provides nonpartisan, legal, and
constitutional analysis to Congress on a range of matters,
including Federal Indian law and congressional authority over
the United States territories.
We are delighted that all three of you are here. And, Chief
Hoskin, we will begin with you. And just make sure your light
is on.
STATEMENT OF CHUCK HOSKIN JR., PRINCIPAL CHIEF, CHEROKEE NATION
Mr. Hoskin. Certainly. Chairman McGovern, Ranking Member
Cole, and distinguished members of the committee, Osiyo. That
is hello. And I bring you greetings from the Cherokee Nation
Reservation.
And before I go into my remarks, I want to acknowledge that
representatives of our government, other than myself, are here
today. We have our speaker of the Council of the Cherokee
Nation, Mike Shambaugh is here; Councilman Keith Austin is
here; Counselor Joe Deere is here; a member of my cabinet, the
marshal of the Cherokee Nation, Shannon Buhl is here; and, of
course, our delegate to the United States House of
Representatives, Kim Teehee is here with us.
The Chairman. We are honored that you are all here.
Mr. Hoskin. This is, Mr. Chairman, an historic day for the
Cherokee Nation and an historic day for the United States. We
are reexamining something that is of critical importance to
both the United States and the Cherokee Nation, and I thank you
for holding the hearing.
I speak to you today on behalf of not only the more than
440,000 citizens of the Cherokee Nation, but millions of
Cherokee citizens who have waited for this day to come since
1835.
This morning we will examine a promise made to the Cherokee
Nation. The Treaty of New Echota, Mr. Chairman, is our removal
treaty. This was the agreement that directly led to the deaths
of thousands of Cherokees on the Trail of Tears.
In this treaty, the Cherokee Nation conveyed the entirety
of our lands east of the Mississippi, about 7 million acres, to
the United States. In exchange, the Government of the United
States made certain promises. One of those promises was that it
is, quote, stipulated that the Cherokee Nation shall be
entitled to a delegate in the House of Representatives of the
United States whenever Congress shall make provision for the
same. And that is Article 7 of the Treaty of New Echota.
The carefully constructed promise found in that article
was, in fact, critical to secure the agreement of the Cherokee
people. Quote, the Indians will never approve that bill without
the delegate. That was from a negotiator from the Cherokees,
John Ridge. Quote, if you fail to obtain for us the right of
being heard on the floor of Congress by our delegate, let the
bill perish here.
The bill did not perish. The Federal Government agreed to
the delegate. The parties entered into the Treaty of New
Echota, and the Senate of the United States ratified that
treaty.
Our right to a delegate was brought forward in our last
treaty with the United States in 1866, and it remains the
supreme law of the land. Cherokee Nation and Cherokee Nation
alone is the tribe that is the party to the Treaty of New
Echota and the Treaty of 1866.
Cherokee Nation has, in fact, adhered to our obligations
under these treaties. I am here to ask the United States to do
the same. It is time for this body to honor this promise and
seat our delegate in the House of Representatives. No barrier,
constitutional or otherwise, prevents this.
As you consider this issue, I believe it is important that
you remember the following: First, the Treaty of New Echota is
a living, valid treaty, and the delegate provision is intact.
Lapse of time cannot abrogate a treaty. That is settled law. To
abrogate a treaty, Congress must do so expressly and clearly,
and it has not done so here.
Article 7 uses classic mandatory language that creates a
right for the Cherokee Nation and imposes a duty on the United
States. The provision twice uses the word ``shall.'' It uses
terms ``stipulated'' and ``entitled.''
This right is unique to the Cherokee Nation. Seating our
delegate would not open up the flood gates to other Tribes
seeking their own representation. Only three Tribal treaties
contemplate some voice in the House of Representatives. Of
these, the Cherokee Nation right in the Treaty of New Echota is
by far the clearest and most direct.
Fairness as always, Mr. Chairman, is important, but denying
Cherokee Nation our right to a delegate simply because this is
not a universal right shared by all Tribes is not fairness. Our
ancestors prioritized this right in the negotiation of the
Treaty of New Echota. We have no right to claim the treaty of
other Tribes; they have no right to claim ours.
Concerns over dual representation have been voiced, and
they are not warranted. It is well settled since the founding
era that the term ``representative'' in the constitutional
sense requires that the representative have a vote on the House
floor for final passage. A delegate in this body has no such
right.
Indian treaties, unlike international treaties, are self-
executing, and the Congressional Research Service asked whether
this treaty right is self-executing, but CRS points to cases
addressing international treaties, and there is, Mr. Chairman,
a distinction.
And I acknowledge the Supreme Court has repeatedly
concluded that an international treaty must be domesticated
through a Federal statute; however, Indian treaties are
inherently domesticated. All of the cases that have considered
this have held that Indian treaties are self-executing.
And, Mr. Chairman, I would point the committee to the 1986
Supreme Court case of Tsosie v. The United States. The Court
summed it up this way, quote, the government has simply failed
to counter the argument that no case has ever held an Indian
treaty to be nonself-executing.
Mr. Chairman, the House has ample authority to unilaterally
seat a treaty-backed Cherokee Nation Delegate. Under the
Constitution's Supremacy Clause, treaties and statutes create
the supreme law. Since a treaty established the delegate
position, there is no need for a separate statute to create the
delegate position. This would render the treaty right in
article 7 of our treaty meaningless. We agree with the CRS that
the House could seat our delegate by adjusting its standing
rules through a House resolution.
Mr. Chairman, Tribes, Tribal organizations, and Tribal
citizens across the country strongly support our effort. They
understand that fulfilling this promise would be an historic
victory for treaty rights and sovereignty. The Treaty of New
Echota requires, requires, Mr. Chairman, the House to seat our
delegate. I urge you to seat Kim Teehee without delay.
Finally, Mr. Chairman, I am a proud American, and I am a
proud citizen of the Cherokee Nation. I have great respect for
the United States' House of Representatives. Because of all of
this, it is my firm belief and expectation that the House of
Representatives will take swift action to seat our delegate to
Congress, honor our treaty right, and, therefore, make the
United States good on its promise to our Cherokee ancestors.
Wado, thank you, and I am happy to answer any questions.
[The statement of Mr. Hoskin follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much, Chief, for your powerful
testimony.
I now would like to turn to Professor Robertson. You are
recognized for your testimony.
STATEMENT OF PROFESSOR LINDSAY ROBERTSON, VISITING SENIOR
SCHOLAR, UC HASTINGS COLLEGE OF THE LAW
Mr. Robertson. Good morning, Chairman McGovern, Ranking
Member Cole, and other distinguished members of the committee.
My name is Lindsay Robertson. And as the chairman mentioned, I
am a professor at the University of Oklahoma College of Law and
currently Visiting Senior Scholar and Indigenous Law Center
Visiting Professor at the UC Hastings College of the Law.
I have been a professor of Federal Indian law for more than
30 years, and taught constitutional law for more than 25. From
2000 to 2010, I served as Special Counsel on Indian Affairs for
Oklahoma Governors Frank Keating and Brad Henry. It is an honor
to have been invited to address this committee on this
important topic.
My role today is to provide an overview of Federal Indian
law for those committee members for whom the field is not
familiar terrain.
Tribal governments in the United States are both
preconstitutional and extraconstitutional; that is, they
existed before European settlement and they operate apart from
and not directly subject to the Constitution.
The power the Tribal governments exercise is inherent, not
delegated, by the United States. Federal Indian law deals in
large measure with sorting out which sovereign--Federal, State,
or Tribal--has jurisdiction over activities that occur within
Tribal lands, which the U.S. code calls Indian Country.
The United States recognizes more than 500 Tribal Nations,
all of which the U.S. Supreme Court has characterized as
domestic dependent nations; nations and not simply aggregations
of individuals sharing a particular heritage, but domestic
nations, not foreign nations, and, therefore, having a special
relationship with the United States.
In the same decision in which it recognized the Tribes as
domestic dependent nations, Cherokee Nation v. Georgia in 1831,
the Court describes that relationship as being like that of,
quote, a ward to his guardian, close quote.
In 1886, in Kagama v. United States, the Court recognized a
substantive legal consequence to this relationship.
As guardian or trustee, the United States has power to
legislate over Indian affairs, but also the responsibility to
exercise that power to the ultimate benefit of the Tribes.
During most of the 19th century, following the British
colonial model, the United States engaged with Tribal
governments by treaty. These treaties often provided for
cession of Tribal lands, but they covered many other areas as
well; military and political alliance, trade relations, and
criminal jurisdiction, for example. In one instance, the Treaty
of New Echota of 1835, they provided for the sending of a
delegate to the U.S. House of Representatives.
As the Federal courts long ago understood, during virtually
all of the period of U.S.-Tribal treaty making, severe
inequalities existed in the relative bargaining power of Tribes
and the United States. Treaties were universally prepared in
final form in English, employing American legal concepts often
unfamiliar to Tribal signatories. Commonly, the U.S. Army was
an active presence during negotiations, resulting in
intimidation.
To reflect this reality, courts interpreting treaties with
Tribes have employed canons of construction similar to those
used in interpreting adhesion contracts. Ambiguities are
interpreted in the Tribes' favor, treaties are liberally
construed in favor of the Tribes, and treaty provisions are
interpreted as the Tribes would have understood them.
Other treaty construction rules arise from the United
States' role as guardian for the Tribes. Because the United
States is guardian, for example, congressional abrogation of
treaty rights requires clear evidence of intent to abrogate.
All Tribes, of course, have different treaty rights, their
nature and scope based on individual circumstances. And
although I suppose it is a theoretical possibility, to the best
of my knowledge, there has never been an equal protection claim
brought by one Tribe against another based on a treaty right.
Similarly, although it is clear that in international
relations treaties may be either self-executing or non-self-
executing, I know of no historical instance of an Indian treaty
being held to require implementing legislation prior to the
vesting of rights.
I thank you for holding this hearing and for allowing me
the opportunity to appear. I would be happy to answer any
questions. Thank you.
[The statement of Mr. Robertson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much.
And now I want to recognize Ms. Schwartz for your
testimony.
STATEMENT OF MAINON A. SCHWARTZ, LEGISLATIVE ATTORNEY,
CONGRESSIONAL RESEARCH SERVICE
Ms. Schwartz. Thank you, Chairman McGovern, Ranking Member
Cole, and distinguished members of the House Committee on
Rules. I am, as you mentioned, a legislative attorney in the
American Law Division of the Congressional Research Service,
and I am here to discuss the legal and procedural factors
related to seating a Cherokee Nation Delegate in the House of
Representatives. I am honored to be here.
The issue of seating a Cherokee delegate in the House rose
to prominence a few years ago when my copanelist today,
Cherokee Nation Principal Chief Chuck Hoskin, Jr., announced
his Tribe's intention to nominate a delegate to represent the
Cherokee Nation. This announcement invoked a provision of the
1835 Treaty between the Eastern Cherokee Tribe of Georgia and
the United States Government. That is the Treaty of New Echota.
For the purposes of this hearing, I am proceeding on the
understanding that the Cherokee Nation is a modern-day
successor in interest to the Eastern Cherokee Tribe of Georgia.
CRS does not take a position on whether any other Tribes may
make similar claims under the Treaty of New Echota.
As you are aware, CRS is a nonpartisan agency serving all
parties in both houses of Congress. We do not take a position
on whether Congress should or should not attempt to seat a
Cherokee delegate. Our role is to offer legal and procedural
analysis, enabling Congress and this committee to understand
the options available to it, along with any attendant risks or
uncertainties.
In this specific situation, because Congress has never
previously given effect to the Cherokee delegate provision of
the Treaty of New Echota, nor ever seated a delegate from a
Tribal Nation in the House of Representatives, there are both
legal and procedural uncertainties.
It is possible, though not certain, that any action to
effectuate the Cherokee delegate provision could prompt
constitutional challenges, whether on equal protection or other
grounds. Whether courts would entertain such challenges depends
on factors, such as who brings those challenges, what legal
principles they invoke, and what harms they allege.
The likelihood of potential challenges may also depend on
what action, if any, Congress chooses to take. Congress has
never seated a delegate in the House other than by legislation
going through bicameralism and presentment. A chart in my
written testimony details the long history of seating
territorial delegates in this manner. However, Congress has
also never before seated a delegate in circumstances like those
here where a treaty provision, ratified by the President with
the advice and consent of the Senate, contemplates that
delegate.
There is an argument that in this context, seating a
Cherokee delegate requires only amendment or change to the
House standing rules. That approach, which would rely primarily
on the House's constitutional authority to, quote, determine
the rules of its proceedings, close quote, would be novel and a
break from the House's prior position with respect to seating
territorial delegates.
Still, that approach does not appear to be explicitly
prohibited by constitutional or a statutory text, so long as
the delegate is a nonvoting participant along the lines of the
current territorial delegates. However, such an approach would
also require reaffirmance every 2 years. It would not establish
a permanent position.
There may also be counter arguments to that approach,
including that the Treaty of New Echota itself says the
Cherokee will be entitled to a delegate in the House whenever
Congress, rather than one chamber, shall make provision for the
same.
Ultimately, Congress may be empowered to apply elements of
its views on this and other matters of interpretation. Although
U.S. courts often have final authority to interpret treaties'
meanings and requirements, Congress plays a unique role in
treaty interpretation when it implements treaties domestically.
The canons of treaty interpretation applicable to Indian
treaties, as discussed in my written testimony and by my
copanelists, although generally viewed as guidelines for
judicial interpretation and not binding on Congress, may inform
Congress' interpretation.
I look forward to answering the committee's questions.
Thank you.
[The statement of Ms. Schwartz follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Well, thank you.
Thank you all for your testimony, and I now will go to
questions.
I should tell you that since we announced this hearing, you
know, I have heard a number of concerns about appointing a
Cherokee Nation Delegate from colleagues in the House, as well
as, you know, other Tribes, other groups, but I am very
sympathetic, Chief--with the way Chief Hoskin outlined this.
I mean, I really--I think there is a strong case here. And
that doesn't mean that we don't consider the other issues that
other Tribes have raised on its merits, and we ought to do
that, but nonetheless, I want to raise some of the questions
that people have asked, you know, not to be adversarial but to
get the answers on the record, because I support this effort.
And so I think we can use these answers to kind of figure
out how best we can move forward and how we can address some of
the concerns that people have raised. So let me go through a
few questions here.
So, Chief Hoskin, the Cherokee Nation Constitution calls
for the delegate to be appointed, not elected. In this Chamber
here, the people's House, you know, I am not sure there is
precedent in modern times for the House to seat an appointed
delegate with equal status to someone elected by all the voters
in Washington, D.C., or Puerto Rico, for example.
So what is the reason for an appointment rather than an
election? And what would the delegate's constituency be? And do
you view it as absolutely necessary that the delegate be
appointed?
Mr. Hoskin. Well, the Cherokee people determined that the
delegate should be appointed, and this is where the United
States could show deference to the Cherokee Nation as a
sovereign Indian nation. The Constitution of the Cherokee
Nation prescribes the manner in which the delegate is selected,
through an appointment by the principal chief, confirmation by
the council. In this instance, I appointed Kim Teehee August of
2019, unanimously confirmed by the council, our legislative
branch. And the first response is deference to the Cherokee
Nation's sovereign act of determining how the delegate is
selected.
The terms of the treaty itself say that the Cherokee Nation
shall have a delegate. It doesn't prescribe the manner in which
it is selected. I suppose the Framers could have done that. I
suppose the United States is probably the party that had the
pen on this treaty, and they didn't choose to prescribe how the
delegate was selected.
Thirdly, I would say, if you look back in history to the
early days of this Republic, in fact, territorial delegates
were appointed. We have some specific citations we can bring to
the committee's attention, but that is, in fact, in the
historic record as part of the House of Representatives.
The Chairman. Thank you. And you addressed this a little
bit in your opening, but, again, I want to get this on the
record. I want to address the super-vote issue, which is a
frequent objection that I have heard as Congress considers this
matter. I am sure the constitutionality piece will be covered
further in this hearing, so I specifically want to talk about
representation on committees.
When the treaty was signed, Oklahoma wasn't a State and its
residents had no representation in Congress, and Native
Americans could not vote. Obviously, now members of the
Cherokee Nation do have congressional representation. Delegates
don't vote on legislation, as you pointed out, on the House
floor, but they do vote in committee, as well as introducing
bills and amendments.
So the idea is that, for example, if a delegate from the
Cherokee Nation gets a seat on the Ways and Means Committee and
a member from Oklahoma is already on the committee, many
Oklahoma citizens would get two representatives on the Ways and
Means Committee, so the argument goes.
So, Chief Hoskin, how would you respond to people arguing
that members of the Cherokee Nation would be doubly represented
on committees?
Mr. Hoskin. Well, the argument misses that the Cherokee
Nation is the sovereign nation whose interests are represented
by the delegate. I mean, the treaty itself was a treaty between
two sovereign nations--the United States and the Cherokee
Nation--and the parties determined that the Cherokee Nation
governmental interest would be uniquely represented in the
House of Representatives. So, in that sense, I don't see the
double representation.
Pointing back to my earlier testimony, the ultimate action
of this body, in terms of the representative action, in terms
of me as a citizen of the Second District of Oklahoma,
Congressman Mullin is my Congressman. His action of voting on
final passage is him taking my voice and the voice of
thousands, hundreds of thousands of other Oklahomans to the
House floor, but not before then. Before then, it is a matter
of Congress' committee structure.
And so in the case of Kim Teehee, a delegate, she would not
vote on final passage. So in that respect, there would not be
double representation for a single Oklahoman.
Cherokee people are all over this country, 441,000
citizens, every State in this country. But, again, the
governmental interest of the Cherokee Nation were what the
parties contemplated when they crafted the treaty of 1835.
The Chairman. Well, thank you very much for clearing that
up, because this is helpful for us to be able to rebut people
who, you know, bring some of these arguments forward. So I
think it is important for the record.
You know, we are very interested in process here at the
Rules Committee, so I want to discuss the mechanics of seating
a delegate.
Ms. Schwartz, how were current delegates like those from
Guam, Washington, D.C., the Mariana Islands seated? And what
did that process look like, generally speaking?
Ms. Schwartz. Thank you. Every delegate, including the
current territorial delegates, have been seated through the
operation of a statute that passed both houses of Congress and
then was signed by the President. So that is--you know, the
list of those delegates and the attendant statutes are listed
in my written testimony, and that has historically been the way
that delegates were seated in the House.
The Chairman. And that would require the House to vote, the
Senate to vote, the President to sign the bill?
Ms. Schwartz. Correct. Or, of course, a overturn--a vote by
a super majority to override a veto of the President.
The Chairman. Yeah. It is just really hard dealing with the
Senate. So I am just----
Mr. Cole. I think you have bipartisan agreement on that.
The Chairman. Professor Robertson, in your view, should a
Tribal delegate be seated through a statute versus a simple
resolution or would the treaty impact that process?
Mr. Robertson. I think the treaty has to impact the
process. I think that the treaty is written in the way it is
for a reason. You know, it might have provided for
representation in Congress, it expressly seated the delegate in
the House, I think with the contemplation that the House of
Representatives would make the final call. The Senate had the
opportunity to weigh in and did at the time of ratification.
As I suggested earlier, and Chief Hoskin, I think, made the
same point, as had CRS, the fact that it is an Indian treaty is
important because we don't have Indian treaties that aren't
self-executing. And, in fact, in this instance as well, there
was no hesitation on the part of the United States, even in the
absence of further legislation, in implementing Federal rights
under the Treaty of New Echota, which included the removal of
the Cherokee people.
So one side was happy acting as if there were no need for
further implementing legislation, and I think what is happening
now is this body is considering whether it is time for the
United States to finish fulfilling the obligations that it made
under this treaty.
I think it is also--so in a sense, I guess what I am
suggesting is, simply deferring to the language of the treaty.
The other deference that I think may be appropriate, and
this relates a bit to your earlier question, Mr. Chairman, is
deference to the Cherokee Nation, both on the choice between
whether Congress should pass a statute, which would benefit
them in the sense that was alluded to earlier, in that it would
be of greater duration than 2 years, or through unilateral
House action, which would have to be renewed. And they have
clearly, as I understand it, opted in favor of the latter
course, despite the potential termination of that right or the
need to renew it.
They are the party that is going to be impacted most
directly, and so I think that deference may be appropriate
here, particularly given the long time it has taken to get
around to allowing them to exercise the right. But I also think
that it is important, as I said earlier, that we don't have a
history of requiring implementing legislation and deference to
the language of the provision.
The Chairman. And, Chief Hoskin, do you have any concern
with the prospect of the Cherokee delegate position being up
for debate every 2 years if it were created through a
resolution versus a statute?
Mr. Hoskin. Well, certainly, if it was through a statute,
you could make the argument that there is a durability to that.
The Chairman. Right.
Mr. Hoskin. But in my view, the United States Senate has
acted, the President of the United States has acted. It is
incumbent upon the House to act. I acknowledge that that means
a every 2 year proposition of coming back to the House.
My feeling is this, as chief of the Cherokee Nation: If the
United States at long last after nearly two centuries agrees to
honor this promise in this Congress, and it could happen this
year, I would--I would think it would be breathtaking for the
next Congress to say we are going to then break this promise.
Now, I am a Tribal leader. I know my history. I know the
United States has broken a promise or two. In fact, it had
broken every treaty it has ever had with the United States. But
I think in the 21st century, when this House of Representatives
seats Kim Teehee, there won't be another Congress that will
dare break that promise to the Cherokee Nation.
The Chairman. Thank you.
So the Rules Committee has received letters and statements
from several other federally recognized Tribes requesting that
Congress consider seating their delegates as well. We received
a statement from the chief of the Choctaw Nation supporting the
Cherokee Nation's request and requesting that a Choctaw Nation
Delegate also be seated on the basis of the 1830 Treaty of
Dancing Rabbit Creek. I ask unanimous consent to insert the
statement in the record, without objection.
We also received a letter from the President of the
Delaware Nation requesting that if any Tribal delegates were
seated, the House also seat a delegate from the Delaware Nation
on the basis of the 1778 Treaty for Fort Pitt, or if the three
successors of the historic Delaware Nation cannot agree on the
delegate, to seat a delegate from each Tribe. I ask unanimous
consent to insert that letter in the record, without objection.
We also received a letter from the assistant chief of the
United Keetoowah Band of Cherokee Indians in Oklahoma arguing
that they are a successor to the historic Cherokee Nation. I
ask unanimous consent to insert the letter in the record, along
with their resolution appointing a delegate, without objection.
And finally, we received a letter from the Eastern Band of
Cherokee Indians arguing that they are a successor to the
historic Cherokee Nation. I ask unanimous consent to insert the
letter in the record, without objection.
[The information follows:]
The Chairman. Look, we are here today to discuss the
Cherokee Nation's request to seat a delegate, but as we
continue to work to honor our treaty obligations, I think it is
important that Congress also look into these other requests.
And so, Ms. Schwartz, I know the Cherokee Nation treaty was
the focus of your report, but has CRS looked into whether other
Tribes may have treaty-based claims for some form of
congressional representation? And if not, is that something
that CRS could do?
Ms. Schwartz. Thank you. We have looked at the treaty
provisions in the treaties that you have mentioned. The treaty
with the Delawares of 1778, if it would be helpful, I would
like to read the way that that provision is worded.
The Chairman. Sure.
Ms. Schwartz. The agreement in that treaty was to form a
State whereof the Delaware Nation shall be the head and have a
representation in Congress, provided nothing contained in this
article to be considered as conclusive until it meets with the
approbation of Congress.
So that treaty provision, first, is slightly more dependent
on congressional approval than the wording of the New Echota
Treaty, and it also more expressly contemplates the creation of
a State that, of course, was never created and that this body
could not create on its own.
The treaty with the Choctaw, which is sometimes referred to
as the Treaty of Dancing Rabbit Creek of 1830, 5 years before
the Treaty of New Echota. I am going to quote from that as
well. That Tribe, quote, expressed a solicitude that they might
have the privilege of a delegate on the floor of the House of
Representatives extended to them. The commissioners do not feel
that they can under a treaty stipulation accede to the request,
but at their desire, presented in the treaty, that Congress may
consider of and decide the application, end quote.
So that treaty, in contrast to the Treaty of New Echota,
did not include a stipulation for a delegate but mentioned a
desire of the Tribe to have a delegate. That does not mean that
Congress could not take an action, but it does mean that the
claim is somewhat weaker than the Treaty of New Echota
provides.
The Chairman. And just to put a final point on this, I
mean, so the Treaty of New Echota is pretty clear about what
was agreed to and what our obligations are. I mean, and I
guess--I say that--and I just want to make sure that you agree
with me on that. I say that--you agree with me on that, right?
Ms. Schwartz. I agree that the language of the Treaty of
New Echota is the clearest of the treaties between the United
States and various Tribes.
The Chairman. Yes. And I say that because what I hope does
not happen is that, as we--you know, everybody--we need to look
into everything, right, but me looking into everything doesn't
mean that we have to wait, you know, on taking action on
something that, to me, is pretty clear as what we are talking
about here today.
So we respect all of the input that we have received from
everybody, and we need to--we need to consider all of this
stuff. However, I think the case that the chief is bringing
before us today is pretty specific and pretty clear, at least
the way I look at it.
And so--but I thank you for your--I now yield to Mr. Cole.
Mr. Cole. Well, first, let me begin where I started off.
Thank you, Mr. Chairman, for holding this hearing. And I want
to thank you and the witnesses for the demeanor of the hearing
and the manner in which we are looking at issues, because the
issues you raised in your questions, I will have some of my own
to raise, are exactly what I hear from other members. It is
really not a partisan issue; it becomes an institutional issue.
And so this is extraordinarily helpful in discussing, you know,
the institutional matters in front of us and also, you know,
indirectly looking at the merits of the claim.
And let me say, I agree with the chairman, each one of
these should consider separately. They are not linked together
in any way. Each document we should look at, each decision we
should make individually. And the fact that others have a claim
should not affect the claim that the Cherokee Nation is
advancing. I very much agree with that.
Chief Hoskin, I would like to ask you in a more practical
way, actually, how do you view the role of the delegate to
Congress? Would he or she--and in this case I think we can say
she. Kim is a very good friend of mine, and somebody I respect
greatly. Would that member be treated in the same manner as
other delegates that we currently have or would he or she have
different duties, rights, and responsibilities and like the
delegate from Puerto Rico and Guam and Samoa?
Mr. Hoskin. Well, Congressman, thank you for the question.
I think they would be similarly situated to the delegates that
serve alongside you today. So the opportunity to serve on
committee, have committee assignments, vote on committee,
propose legislation, debate, all the way to the House floor, of
course, not voting on final passage. Otherwise, I think it is
the entire depth and breadth of the delegates that serve in
this body today.
Mr. Cole. I think that is really important for other
members to understand. We are not talking about anything
different here than we already do in multiple cases in this
regard in terms of how that delegate would act and the
authority and responsibilities they would have as a Member of
Congress.
Second, and I get this question a lot, so I want to pose it
to you. Obviously, this is an old treaty, right, 1835. Why was
it not addressed or impressed immediately? And I would also
take that on advisement. I mean, I am delighted to hear your
answer, but if you have additional information later from
historians or whomever. I mean, that is a question I get. Well,
gosh, if this was there and it was a treaty, why wasn't it done
immediately at the time? Why didn't the Cherokee Nation, and
maybe it did, advance the claim at the time?
Mr. Hoskin. Congressman, I love this question because it
gives me an opportunity to talk about Cherokee history of which
there is not enough knowledge in this country.
Mr. Cole. That is why I opened the door.
Mr. Hoskin. You certainly did that, and I won't miss the
opportunity.
The history since 1835 with the Cherokee Nation has been
one of rebuilding and then being suppressed again, being
oppressed again, being dispossessed. We seem to be in
rebuilding modes over the last two centuries. Think about what
happened. The Trail of Tears, came after the Treaty of New
Echota, nearly destroyed the Cherokee Nation. Lost a quarter of
our population, ripped apart our institutions, was the near
destruction of the Cherokee Nation.
We rebuilt. That story, Mr. Chairman, ought to be an entire
story that every American understands, because our rebuilding
is incredible, but it took a great deal of resources. So when
we get to our new homeland in what would later become Oklahoma,
we are simply trying to survive and rebuild a great society.
Decades go by, the Civil War visits the Cherokee Nation,
and brings even more destruction and division than the Trail of
Tears, if you can imagine that. We go into another period of
rebuilding in the post-Civil War era late in the 19th century.
At the turn of the 20th century, as we know, the State of
Oklahoma is created by the Congress of the United States, a
number of Federal Indian laws are passed, which, again,
dispossess Cherokee people of our collective possessions, our
land. Nearly dispossesses us of our government. I think,
Congressman, a lot about my grandfather in this role.
Let's get into the 20th century, my grandfather's century,
a full blood Cherokee, World War II veteran. The United States
suppressed the democracy of the Cherokee Nation to such a
degree that he could not vote for a chief of the Cherokee
Nation during most of his lifetime. I don't imagine he ever
thought his grandson would be the elected chief of the Cherokee
Nation. But in the 1970s, we start to rebuild, and we have been
on a trajectory, as has other Tribes in Oklahoma and across
this country, of building economic strength, prosperity back
home.
And so we are now, I think, in a position where we can, as
a practical matter, assert this right; whereas, my predecessors
in the two centuries before, frankly, we were just trying to
hang on to our way of life and rebuild. So that is the
explanation.
Mr. Cole. Well, just to offer a personal comment in
support. I know exactly what you are talking about. My great-
grandfather was treasurer of the Chickasaw Nation at that very
same time, and he had to sit there in our capital on the second
floor and figure out how to dispose of our property, which was
taken from us inappropriately, you know, both in terms of
individual plots and then, frankly, what we gave back to the
United States Government to try and protect, like what is the
heart of now the Chickasaw National Recreational Area was
literally sacred springs to us, and we didn't want them in
private hands. So we literally gave it back to the Federal
Government, so it is now the core of a national park. But
believe me, I understand the difficult decisions that your
forebearer made.
Ms. Schwartz, I want to ask you--and I invite the other
panelists to also weigh in on this--your thoughts as to whether
the Treaty of New Echota is still in force and to explain
whether you believe the Cherokee Nation is a successor in
interest to the treaty or whether that is still an open
question, because obviously we have some issues raised by
others about that.
Ms. Schwartz. If I can briefly address the latter part of
your question first. The Congressional Research Service does
not take a position on whether the Cherokee Nation or other
Tribes are successors in interest to the Cherokee Tribe that
signed the treaty. We are participating in this hearing
essentially on the understanding that the Cherokee Nation is a
successor in interest. And there has been case law determining
that the Cherokee Nation is a successor in interest to the
historic Cherokee Tribe, particularly in the context of the
1866 Treaty, which did reaffirm the previous treaties,
including the Treaty of New Echota.
But we do not take a position on whether other Cherokee
Tribes of today are also successors in interest at this point.
Mr. Cole. Thank you very much.
I would invite Chief Hoskin and then Professor Robertson to
answer the same question.
Mr. Hoskin. Representative, I do have an opinion on this.
Mr. Cole. I suspected you might.
Mr. Hoskin. And I think plainly, the historic record and
the law demonstrates that the Cherokee Nation, of which I have
got the honor of being the elected principal chief today, is
the Cherokee Nation, the same Cherokee Nation that is party to
every treaty with this country since its founding and that
predated this country. I have great respect for the two other
Cherokee bands that have been mentioned, the Eastern Band of
Cherokee Indians in North Carolina and the United Keetoowah
Band of Cherokee Indians in Oklahoma.
The issue with the Eastern Band was disposed of by the
United States Supreme Court in a decision in which they
determined that they were not the successor in interest. That
question has been asked and answered.
The United Keetoowah Band of Cherokee Indians in Oklahoma
was authorized by this Congress in 1946 and recognized in 1950,
more than a century after the treaty of 1835 certainly, and
well after the last treaty that this nation, the Cherokee
Nation, signed with this country in 1866. The Cherokee Nation
of which I have the honor of being the chief is the same
Cherokee Nation that signed those treaties.
Mr. Cole. Professor Robertson.
Mr. Robertson. Yeah. I am not sure I have much to add to
what has been said by my copanelists. I do understand that the
Interior Department is looking into some of the questions that
you raised, Congressman Cole, and I believe that process is
ongoing. So it may be that there are answers coming from
Interior.
Mr. Cole. Okay. Professor Robertson, let me ask you this
question: Both the Constitution and Supreme Court precedent
have highlighted the equality principle, the idea that one
person's vote is equal to another person.
With the potential of appointing a delegate who would
already have congressional representation, would you have any
concerns about the constitutionality of the delegate? And I
would invite others to respond as well.
Mr. Robertson. Yeah. I think the argument that I find
persuasive is the distinction between--that has been raised in
some of the materials presented is the distinction between a
member/representative and a delegate. The power of delegates
is--well, there may be some practical advantages to or
represented constituency to having a delegate in terms of
opportunities on committees. The denial of the power to vote
for final passage of legislation I think is a severe
limitation. And I think the Constitution uses the phrases
``member'' and ``representative'' deliberately, you know, to
assure, and the constitutional law cases relate to those
positions because they have a final say over the laws that
govern the land and there, I think, equal protection concern is
most severe.
So, you know, without having dived into the issue in-depth,
my initial thought is that that distinction is material. And so
I don't know that I would have any particular concerns.
Mr. Cole. Okay. I will turn to you, Ms. Schwartz, and then
Chief Hoskin, I would love to get your opinion as well.
Ms. Schwartz. So the instruction that we have from the
courts is not directly applicable to this case. We do have
determinations about the constitutionality of the current
delegates, the territorial delegates, but there is a
distinction in that none of the territorial delegates represent
citizens or residents who already have representation in the
House. So the particular situation that we are facing here is
not one that the courts have weighed in on.
That said, simply because something has not been done
before does not necessarily mean that it cannot be done. It is
simply a consideration that this body should take into account
when it is making its decisions.
There is the possibility that someone could try to raise an
equal protection claim. It is not clear whether the courts
would hear that claim or, indeed, how they would rule on it if
it were raised.
Mr. Cole. Thank you.
Chief Hoskin.
Mr. Hoskin. Well, I would just reiterate an earlier
statement that I made that the power, the voice of the
representatives of this body is on final passage. The delegate
would not possess that right and so would not be exercising
that final authority on the part of a Member of Congress.
And let's remember, the United States crafted this
provision and said that the Cherokee Nation shall have a
delegate. That is the Cherokee Nation's governmental interest.
The Cherokee Nation has read that and that informed our
decision as Cherokee people to fashion our Constitution to
appoint the delegate to represent the Cherokee Nation's
government. I think that the United States would need to err on
the side of making this provision effective rather than--I
don't want to suggest finding a way to make it ineffective, but
I would say, let's find a way to make it effective just looking
at the plain terms of the treaty--the Cherokee Nation shall
have this right.
Mr. Cole. Okay. Let me ask one final question, and I will
address it initially to you, Dr. Robertson, but I also would,
you know, open it up to the panel. You know, in this body, we
all have our differences, but we are generally pretty united on
we are not very fond of the United States Senate. You know,
there seems to be a bipartisan consensus on that, and it really
doesn't matter who happens to be in control at a given moment.
We have our problems with the Senate.
So we have a treaty that was obviously, you know, concluded
by representative of the President of the United States,
approved by the Senate of the United States, but affects the
membership of the House of Representatives. And, obviously, we
are not party to that decision.
So to proceed, does the House expressly have to act, number
one? And number two--or could you go to court for instance,
and, okay, this is a treaty right. But does the House, number
one, have to act?
And we have addressed this a little bit, but I want to be
very clear about it, your opinions collectively between the
virtue, again, of a statute and a resolution, depending on how
we acted--I think you have all addressed this one way or the
other, but I think it would be very helpful to have it very
specific. So if I can start, Professor Robertson, with you.
Mr. Robertson. Sure. Well, I think on the latter question,
you know, the path of least resistance, especially if it
comported with emotional predispositions, might be the best way
to go, which is to say, to act with the Senate, let's just do
this ourselves because we decide that it is the right thing to
do, to follow through with obligations that the United States
undertook to follow through with ages ago.
And, by the way, I might add, my mother was a Senate
staffer during the whole of my childhood, so I understand
institutional inter-house rivalry----
Mr. Cole. We all shouldn't be ashamed of our past.
Mr. Robertson [continuing]. Very well.
So your first question--I am sorry, can you remind me? It
was whether you have to act----
Mr. Cole. Basically, could this right be enforced in a
court without action by the House? In other words, does this
require action by the House, be it resolution or statute? And
then second, the merits of either one of those approaches.
Mr. Robertson. Yeah. I think as a--my guess is--I just
taught the political question doctrine cases last week, and my
gut is that this is precisely the sort of question that a
Federal court would decide it did not want to mess with. So my
guess is that this would likely be something that the courts
wouldn't want to deal with, although, theoretically, I imagine
they would have jurisdiction and could. So that is just sort of
my guess based on having done this stuff for a long time.
As to the merits, again, of a statute or the House acting
unilaterally, I guess I would repeat what I said earlier. I
don't think there is any requirement for a statute. I think
that under the terms of the treaty and just the way the courts
have dealt with Indian treaties forever, I think this is
something you could do on your own. I think that the objective
disadvantage is, again, the one that has been alluded to
earlier, which is that it would be a terminal right in the
sense--or a renewable right. But that is a cost that would be
paid by the Cherokee Nation, and it sounds as though they are
more than willing to pay it.
And so it just seems to me, again, circling back to the
beginning of my answer, that, you know, it would be easier for
you guys to do this on your own, if you believe that it is the
right thing to do. And I believe it is the right thing to do,
then I would say go ahead and do it. And then, you know, see
how it works out, see if there are challenges.
I am not sure that there would be challenges. I agree with
CRS that courts would find justiceable (ph) or that they wanted
to involve themselves with. And then in 2 years, you know, see
where everybody was, and renew it or maybe at that time pursue
a statute.
Mr. Cole. Okay. Ms. Schwartz.
Ms. Schwartz. Thank you.
So to the first part of your question, does the House have
to act, I think the best answer is yes. I think it would raise
serious constitutional questions if the Senate and the
President acting through a treaty could bind the House to take
an action that so inherently affected the internal workings of
the House. That would be unprecedented. It would be very
different from any other operation of treaties that I am aware
of.
To the second part, could this be enforced in court if the
House did not act. I, again, think the best answer is no. And,
again, we don't have case law directly on this, so the answer
is not certain. But there are two things that I think are
problematic there.
First, it is really unclear who would have the ability to
bring that suit to try to enforce it and whether they would
have standing.
Secondly, as my copanelist alluded to, it may present a
political question that the courts would not want to engage
with under principles of comity.
And, thirdly, I think if they did address it, that the
separation of powers principles would really come into play,
that they would be unlikely to order the House to do something
that, again, so intricately affects the internal workings of
the House on the authority of something that the House had no
say in.
Mr. Cole. Thank you very much.
Chief Hoskin.
Mr. Hoskin. Congressman, as to the question of the courts,
I will probably think a bit more on the answer before giving
this body a final one, in part because I am going to think
about what my fellow panelists have said; in part because the
Cherokee Nation has spent quite a bit of time across the street
in a lot of cases lately, and maybe we have had our full of the
judiciary.
But in any case, I think that this body--as to the second
question, this body absolutely could take action, should take
action. And I think that from the perspective of the Cherokee
Nation--and I don't mean to be overly dramatic--but we have
waited two centuries. We believe the Senate has acted. We
believe the President has acted. And now we think the House
acting, even though it is not a durable instrument, that a
resolution should pass this body. And I think it would send a
powerful message to the country for the United States to keep
its promise in that fashion.
Mr. Cole. Thank you very much.
I thank all of you, again, for appearing. And, again, Mr.
Chairman, thank you very, very much for holding this hearing. I
am very, very appreciative. Yield back.
The Chairman. And I just want to be clear. I mean, we
actually do both, right? I mean, we could actually pass a
resolution to seat a delegate and, at the same time, if we
wanted to, work on a more durable statute, which will take a
lot more time. I mean, there is nothing that says you can't do
both, right?
Ms. Schwartz. That is correct. I am not aware of any
prohibition on doing both.
The Chairman. Mrs. Torres.
Mrs. Torres. Thank you, Chairman and Ranking Member. I
think a lot of my questions were proposed by both of you.
I do want to go back to Ms. Schwartz. You started to quote
a bit of Article 7. Are you able to read the entire Article 7
to us here today?
Ms. Schwartz. Yes, I am.
Mrs. Torres. Great. Then I don't have to read this little
tiny writing on my iPad.
Ms. Schwartz. Article 7: ``The Cherokee nation having
already made great progress in civilization and deeming it
important that every proper and laudable inducement should be
offered to their people to improve their condition as well as
to guard and secure in the most effectual manner the rights
guaranteed to them in this treaty, and with a view to
illustrate the liberal and enlarged policy of the government of
the United States towards the Indians in their removal beyond
the territorial limits of the states, it is stipulated that
they shall be entitled to a delegate in the House of
Representatives of the United States whenever Congress shall
make provision for the same.''
Mrs. Torres. Provision. When I look up the word
``provision,'' its true meaning, it is preparation. It does not
say by Congress passing a law. It simply says provision. We
need in order for you to be a Member of Congress, a delegate or
a commissioner, you need to have your name on a ledger. You
need to have an office. You need to have a budget. You need to
have staff.
When I read through Article 7, and it specifically speaks
to improving conditions for the Cherokee Nation and that
Congress is left with its duty to provide room for another
Representative in the people's House. It does not say that
Congress should pass a resolution.
There were 20 signers, 10 witnesses. This treaty was very
clear in defining the word to improve conditions, and
preparation, in my opinion. I am not an attorney, nor do I
pretend to be today. But I do believe that the preparation that
they were talking about here in the treaty was not for the vote
of Congress, because the treaty had already been agreed in
consent with the Senate. It is unfortunate that the Senate did
not agree to have a delegate in their house, but this is the
people's House.
So, you know, I think that that is where we need to look at
how do we honor that.
Chief Hoskin, has the Federal Government improved
conditions of the Cherokee Nation? Has the Federal Government,
aside from Article 7, upheld its duty to provide and protect?
Mr. Hoskin. Thank you, Congresswoman.
It I look at the last two centuries, I would say the
balance is in favor of the United States having diminished the
Cherokee Nation, suppressed the Cherokee Nation, dispossessed
us from things that are precious, and put us on the receiving
end of things that I think this country now regrets.
If you look more recently in history, our relationship with
the United States is much improved. I mentioned earlier the
period of the 1970s to the present. That was a change in
Federal Indian policy that restored the civic institutions of
the Cherokee Nation and other Tribes, put us on a path that,
frankly, we would be on before European contact, which is self-
determination, charting our own course.
So in that respect, in the last 40, 50 years, we have been
on a trajectory of improvement. The United States has a great
deal of work to do. I mean, when it comes down to it, the next
time the United States fulfills a solid promise to the Cherokee
Nation will be the first time it has done it. The next time--
and with all due respect to the Congress, the next time the
Congress fulfills its trust obligations with respect to funding
and other types of resources will be the first time it is done.
So there is more work to do. In the balance of two
centuries, the United States is far behind in improving
conditions. However, we are on a path of progress. What an
amazing mark of progress would be it to fulfill a two-century
old treaty that up to this point--and I want to stress this to
the committee--up to this point, if you ask a Cherokee what
does the Treaty of New Echota mean to you, it means pain,
indignity, and injustice. We can turn that into justice and a
measure of restoration for the Cherokee people and a measure of
progress.
Mrs. Torres. In looking at whether the government, the
Federal Government, has provided even basic needs, water?
Mr. Hoskin. Well, if you look across Indian country, there
is still a great deal of deficits. It is true in the Cherokee
Nation--I think about in this role what Kim Teehee may do in
this Congress as a champion for all of Indian country. And we
know that there are parts of Indian country where the
circumstances are completely desolate when it comes to basic
infrastructure. There are parts of Cherokee Nation where it is
lacking. And I think the United States can do a great deal more
to close that gap. Having a voice in this Congress will help
that, but there is more work to do.
Mrs. Torres. And I think that is what is key here is having
a voice in this Congress. Representation truly does matter, in
my opinion.
As I close, I haven't had an opportunity to speak with you
before today to thank you about the work that you have done in
my district to ensure that the shelter, the migrant shelter for
children, tender-age children, was run by you. You received the
Federal contract on that. And while my weekly visits might have
not been as welcome to some, to the Cherokee Nation, they were
very welcome. Holding the Cherokee Nation accountable for
keeping to the contract, the specific contract of what was
called out to protect these children, I was there every week to
make sure that you were doing that, and you were there every
week at the table ensuring that my questions were answered.
So when we look at other shelters and we look at the abuses
from forcing children to take narcotics--you can call them
medication, I call them drugs--sexual violence against tender-
age children, physical violence against children, none of that
happened under your watch and my watch because we were both
diligent.
So thank you for, you know, meeting the needs of that
contract, and I hope that someday the Federal Government will
also meet you eye to eye on this treaty.
And I yield back.
The Chairman. Dr. Burgess.
Dr. Burgess. Thank you, Mr. Chairman.
And, again, I will also stipulate that Ranking Member Cole
asked a great number of the questions that I was contemplating,
but thank you all for being here today.
And, Chief, can I just ask you, because it is a deficit in
my historical knowledge, you keep referring to an 1866 re--was
it a reformatting or re-signing of the treaty at that time? Is
that correct?
Mr. Hoskin. That is correct.
If I could, in 1866, of course, was--coincided with the end
of the American Civil War, of which the Cherokee Nation figures
in in terms of splitting our Nation and our various alignments
with the Confederacy and with the Union, and it is, itself, an
interesting history, an important history.
If the post-Civil War era, there were a series of treaties
that the United States came to the Tribes at that era and
renegotiated, and so there were changes. The key provision--and
I am glad you brought this--is that in the 1886 Treaty, the
Framers were careful to say that any provision in a prior
Cherokee Nation Treaty not inconsistent with the new terms were
carried forward.
So in that respect Article 7 of 1835 was explicitly carried
forward as part of that clause.
Dr. Burgess. So it would have been reaffirmed as a result
of the 1866 Treaty?
Mr. Hoskin. Yes, sir.
Dr. Burgess. And, Ms. Schwartz, thank you for reading
Article 7 for us. It is--as I listened to you reading that, in
my mind's eye, it was describing a people that were relocated
outside of the then-existing United States to an area that was,
in fact, a territory, not a State.
Does that have any implication for what we are discussing
today now that statehood, whether we have agreed with it or
not--just kidding, because Texas-Oklahoma has a certain
rivalry. But after statehood was conferred upon Oklahoma, does
that change the equation now that Oklahoma is a State?
Ms. Schwartz. It is certainly something that this body can
take into consideration when it is deciding its interpretation
of the treaty language. The words immediately preceding the
delegate provision do say, ``in their removal beyond the
territorial limits of the States.''
So certainly at the time the treaty was signed, the
Cherokee did not have other representation in Congress because
the area to which they were removed was not a State.
However, it does then say, ``It is stipulated that they
shall be entitled to a delegate in the House of Representatives
whenever Congress shall make provision for the same.''
And that provision is not explicitly contingent on the
territory remaining not a State. And because at least in
courts, one of the cannons of construction is that treaties are
not abrogated by implication, meaning that a court is probably
unlikely to find that the delegate provision was implicitly
abrogated by statehood because Congress when they made Oklahoma
a State, did not say, And now the delegate provision of the
Treaty of New Echota is abrogated.
Dr. Burgess. Let me ask you a question then. Say, for
example, the Dakota territory when statehood was achieved by
North and South Dakota, presumably they had territorial
representatives--or did they have territorial representatives
in the House of Representatives at that time?
Ms. Schwartz. I am going to refer to my chart for Dakota.
There was a territorial representative established in 1861.
Dr. Burgess. So when statehood was achieved, it was no
longer necessary to have the territorial representative? Is
that--would be that be a correct understanding of what----
Ms. Schwartz. Correct. So the Statehood Act or enabling act
itself generally took care of arranging those procedural
matters.
Dr. Burgess. And then when Oklahoma became a member of the
United States--and we are grateful that you became a member of
the United States, even though you rate our high school
football ranks for your football team. But, seriously, what----
Mr. Cole. I will stipulate usually, this year excepted, our
Texas players are better than your Texas players.
Dr. Burgess. Does this figure into the discussion at all,
is the only question I am asking. Because just like Chairman
McGovern and Ranking Member Cole, we all get questions about
this. And I just want to be sure we have our facts correct when
we present this information on the floor of the House.
Ms. Schwartz. So because there was not a Cherokee delegate
in the House at the time of Oklahoma statehood, the legislation
enabling Oklahoma statehood did not mention a Cherokee
delegate. So it was neither acknowledged as a continuing
promise nor eliminated.
Dr. Burgess. Okay. So it was silent on the fact?
Ms. Schwartz. Right.
Dr. Burgess. Okay. Well, then I will just ask the same
question you have now been asked probably three or four
different times. If you detect a theme of concern about the
other body here in the Capitol, I mean, it is earned because we
have all had experience. But the concept of the Senate
requiring an action of the House seems a little bit strange to
some of us, recognizing the separation of powers, they can't
raise taxes, we can't do treaties, but then they can rename
House passed bills and insert entire new provisions in them
that are revenue raisers. So the Senate effectively gets around
the fact that the House is the site of the origin of all
revenue bills, but we never enter into treaties on the House
side.
So this is something that, from an institutional
perspective, I think we need to address, the ability of the
Senate to require us to do something as a result of one of the
treaties that the Senate has entered into.
Ms. Schwartz. So I think that is why my answer to the
question of whether this could be enforced in court, absent any
action by the House, is likely not. I think a court would be
very reluctant to find that the Senate and the President could
essentially bind the House to do something.
Dr. Burgess. Well, Chief, let me just ask you, has it ever
been tried? Has the process ever gone through the courts to try
to enforce the Senate's provision on the House?
Mr. Hoskin. The answer is no. The first act of asserting
this right was when I took the United States up on its offer
and appointed Kim Teehee and coming here today.
Dr. Burgess. Okay. Well, thank you all for your input this
morning. It has been very educational. I have learned a number
of things.
It is--what can I say? I mean, it is obviously an honor to
serve with Ranking Member Cole. He and I came into Congress at
the same time. I have learned a great deal from his wisdom here
on the committee and, obviously, will continue to do so.
But thank you all for your participation this morning.
And I yield back, Mr. Chairman.
The Chairman. Thank you.
Mr. Raskin.
Mr. Raskin. Mr. Chairman, thank you.
I need to start by asking unanimous consent to submit a
statement for the record. Last year, Secretary Haaland approved
a new Constitution for the Cherokee Nation, which explicitly
ensures the production of the political rights of all Cherokee
citizens, including the Tribe's Black members. These
individuals are descendants of the Cherokee Freedmen who were
enslaved by the Tribe before the Civil War and were emancipated
afterwards.
Echoing Secretary Haaland, I want to applaud the Cherokee
Nation for its decision to honor its moral and legal
obligations to the Freedmen and their descendants. It is a
crucial step towards racial equality, justice, and
reconciliation, and it is worthy of our appreciation and our
emulation.
Mr. Chairman, therefore, I ask unanimous consent to insert
into the record a statement from Mr. Damario Solomon-Simmons of
Tulsa, Oklahoma, which commends the Cherokee Nation for taking
this step and expresses hope that it will herald a new era of
openness and inclusivity in the Nation.
The Chairman. Without objection.
Mr. Raskin. Thank you.
Mr. Chairman, it is an extraordinary moment that you and
Mr. Cole have allowed us to have here, and none of us should be
unaware of the history-making nature of this proceeding.
I wanted to start by asking whether Delegate Teehee is
actually present?
Delegate Teehee is here. Well, I want to welcome Delegate
Teehee, at least on behalf of the good people of Maryland's 8th
Congressional District, and it is great to see you here
representing the Cherokee Nation.
And I want to ask a few questions, which I think will lead
up to my basic point, but I want to make sure I believe in my
basic point, so that is why I want to ask some questions. But
based on what I have heard, I think there is a very easy--one
easy question and one hard question before us.
The easy question is, do we have a legal, and I would say a
moral, obligation to seat Ms. Teehee? And the answer to that
seems to me clearly to be yes. This is just a matter of reading
the 1835 Treaty of New Echota, and then establishing its
meaning and then acting upon it. That doesn't strike me as
difficult at all, but I do want to ask a few more questions
related to it.
The difficult question is, what does it mean to be a
delegate from a nation to the House of Representatives, which
we have never done before? Because the delegates we have are
either from territories, American Samoa, Guam, Virgin Islands,
Puerto Rico, or they are from the District of Columbia, which
inhabits still a different sub constitutional jurisdictional
plane. And so, this would be new for us. And it is not a
foreign nation that we would be seating a delegate for. It is a
domestic nation. And so, I think that that is the question we
need to look at.
But let me quickly try to go through some questions to make
sure that I have got confidence in these conclusions.
To begin with, have there been delegates elected before by
the Cherokee Nation, or is Delegate Teehee the first one?
Mr. Hoskin. Delegate Teehee is the first one. If you look
in the historic record, there may be references to a delegation
going to Washington, D.C., but they were not elected in the
formal sense, and they were not done pursuant to this treaty.
Mr. Raskin. And do you have within your records any
correspondence historically between the Tribe and the House of
Representatives or Congress asking to be seated before?
Mr. Hoskin. I am not aware of any contemporaneous documents
on that.
Mr. Raskin. Okay. Fair enough. So there is no adverse
authority that the Congress said no, or the House said no,
okay, that is out there.
People talked about the language in Section 7 of the treaty
about whenever Congress shall make provision for the same. Of
course, Congress is defined in our Constitution under Article
1, which says that each House shall define the rules of its own
proceeding. And we also decide upon our own members, and we
certainly decide on our own delegates. It is true that there
have been statutes passed before, but they are seated by the
House. And this one comes to us in a somewhat different posture
because it comes by virtue of treaty. And, of course, the
supremacy clause of the Constitution says the treaties exist on
the exact same level as Federal statutes do. So it is a binding
law upon us. A treaty is binding upon us, just like any other
Federal law would be.
So right now, Delegate Teehee came to her official position
by virtue of an appointment? Is that right?
Mr. Hoskin. That is correct.
Mr. Raskin. And is that under some bylaw that you have
written?
Mr. Hoskin. That is pursuant to the constitution of the
Cherokee Nation which was ratified by the Cherokee people.
Mr. Raskin. The new constitution?
Mr. Hoskin. Correct. The constitution--the new constitution
includes that
language, yes.
Mr. Raskin. Gotcha. Okay.
All right. So all of this would be self-executing. I guess
my question is--what we would have to figure out only is rival
claims to being the successor to the Cherokee Nation that
entered into the 1835 Treaty. And I haven't had a chance to
scrutinize that the letters, like from the United Keetoowah
Band of Cherokee Indians in Oklahoma. I don't know--how many
other claimed rivals are there? Is it just that one?
Mr. Hoskin. Congressman, what I heard earlier from the
chairman is there were letters received from two bands of
Cherokees: the Eastern Band of Cherokee Indians, and the United
Keetoowah Band, and I addressed earlier that those claims to
successorship, in my opinion, don't withstand any scrutiny.
Mr. Raskin. All right. And so I do think, Mr. Chairman,
that is something we would have to figure out. You know, when
we say--when the court says that is a political question, that
means we have to figure it out. It is up to us. Our decision
and judgment on that would be binding. It certainly seems from
everything I have seen that you guys are the logical successor,
but obviously, we would have to do our due diligence on that
before we, you know, rendered a final decision on it.
All right. So then I want to shift to this other question
of what actually it would mean to send a delegate here. My
understanding of the delegate positions falls into a couple of
different categories. If you look at the Northwest Ordinance
and the delegate positions that were created then, Jefferson
basically had the idea that the delegates would be representing
territories that are essentially States in waiting, or States
in training, States in tutelage to become States. Right? And so
they would send delegates, and those representatives would
learn more about the Federal Government, and also take back
information from the Federal Government to the Territories.
That is, obviously, not applicable because you are not on the
pathway to being admitted as a State, and that is not part of
the understanding, at least as I get it.
The other, of course, is the District of Columbia delegate,
Washington, D.C., has itself petitioned for statehood, but that
is for the non-Federal areas. That is for the residential areas
which they want to be seated to a new State. The existing
Capitol Federal District would still be directly under
Congress. I don't know whether or not there would still be a
nonvoting delegate there, but that is also seen as, like, a
permanent part of the country.
But so, you would arrive at something between a delegate
and, like, an ambassador, right? And I just wonder, that would
have implications in terms of how we seat you and what you do
or what Delegate Teehee would do once she gets here. She
obviously can't vote on final passage. The Supreme Court and
the D.C. Circuit Court have been clear about that, even with
respect to these delegates. In a case called Michel v.
Anderson, I think it was in 1994, they said these people cannot
vote on final passage, even though it is okay for them to vote
in committee because that, you know, can be reversed on the
floor. So it wouldn't be that.
We would want to make sure presumably that there be every
equal dignity and ceremony attendant to the office that the
other delegates get. I guess the big question is serving on
committee.
And then there is that question of is there a kind of
double representation that, you know, the Cherokee Nation is,
obviously, all over the country--how many States are included?
Mr. Hoskin. All 50 States.
Mr. Raskin. All 50 States, okay. So, yeah, in that sense, I
guess the members of your nation would be double-represented if
they had a Representative on the committee from their district
and then they also had the Cherokee Nation representative
there. I don't know how big a deal that is because presumably
Delegate Teehee or her successors would be looking out for the
interests of the nation as a Nation. Is that understanding
right?
Mr. Hoskin. That is my understanding. That is how I read
the treaty. That is how I understand her role.
Mr. Raskin. Yeah. So would there only be certain committees
that you think she would want to serve on or you would want
your delegate to serve on? Do you not want to serve on
committees? And what is your thinking about that?
Mr. Hoskin. This is my view of it, Congressman, is at the
time, I think the Framers of this treaty plainly were concerned
about the governmental interests of the Cherokee Nation having
a place in this body. If you look at what our governmental
interests are today, they really cross every committee that you
have. The Cherokee Nation today--here's the shorthand way I
would describe our government--we do everything the United
States does except maintaining a standing Army and print money.
Sometimes I wish we printed money, but we don't print money.
But we do a great deal of things.
And so if you look at what we do in terms of our
governmental interest, I think it spans the entire depth and
breadth of this body, and so I would think that any committee
assignment would be fair game. Perhaps there are some
exceptions to that, but I think primarily, if you focus on what
our main day-to-day issues are, certainly natural resources,
certainly our engagement with the Bureau of Indian Affairs, and
certainly everything that touches upon sovereignty would be
important. But, again, healthcare, human services,
infrastructure, it is broad.
Mr. Raskin. Yeah. Well, and so I----
The Chairman. The Rules Committee is a good committee to
serve on.
Mr. Raskin. Yes, the Rules Committee is a great committee.
Mr. Chairman, just on this point, I think that we should be
creative in our thinking about it. There might be, you know, a
certain committee that the member could be a standing member
of, or would be--you know, like Natural Resources or Interior,
something like that, or we could also say, because all of the
work of the Congress affects the Cherokee Nation, perhaps the
Member could just waive on to any committee when there is a
hearing of interest to her or to him. I don't know. I think we
could think about it differently because I do think for us we
have to distinguish between the role of territorial and
district delegates from the role of a delegate of a nation,
even if it is a domestic nation.
In any event, I want to thank you for your patience. That
should be a massive understatement, obviously. But I don't
think we should be very patient in the final days of this
Congress, and I think we should act with dispatch to make this
happen. I think there are some final things we have got to
figure out, but we should move as quickly as possible.
I yield back to you, Mr. Chairman.
The Chairman. Thank you.
Mr. Reschenthaler.
Mr. Reschenthaler. Thank you, Mr. Chairman. I appreciate
it.
Most of my--actually not most--all of my questions have
already been asked and answered at this point. But I think it
is a really fascinating discussion. I can't help but to think
how different our history might have been had we brought the
Tribes more into the fold from the very beginning.
But with that, I am looking forward to having offline
discussion with my good friend from Maryland, because I have
got some questions. I was going to ask you to yield for a
question, but I don't want to put you on the spot, so I will
talk to you offline about some of my thoughts to see your
opinion.
So thanks to everybody for testifying.
And I yield back.
The Chairman. Thank you.
Ms. Scanlon.
Ms. Scanlon. Thank you.
Thank you all for your testimony today. And thank you,
Chairman McGovern and Ranking Member Cole for holding this
hearing.
I is certainly not often we have such a unique opportunity
to really probe into history and a lot of really fundamental
questions.
I guess one thing I was really struck by Chief Hoskin's
quoting from John Ridge's letter, and it really made it
explicit that the Cherokee agreement to the treaty was really--
that the issue of the delegate was really central.
And I was curious--and I would ask this of each of our
witnesses--are there other key elements from the
contemporaneous--the folks who negotiated the treaty that you
would point to as being particularly instructive as to what
people intended with respect to the delegate?
And I can start with you, Chief Hoskin.
Mr. Hoskin. Well, Representative, thank you for that. I
wish I could be more responsive to your question.
That was a very powerful passage from John Ridge, and that
entire history of how that treaty was negotiated is itself
fascinating. If there is more to add to the record, we will
supplement. I am not, though, prepared here to provide anything
further, but I do think that drove the point home nicely.
Ms. Scanlon. Okay.
Ms. Schwartz, is there anything, including you can point us
to the particular parts of the CRS history--or CRS report if
that is easiest?
Ms. Schwartz. It is not directly contemporaneous with the
New Echota Treaty, but in a later treaty that was negotiated
actually with the Confederacy, there is a similar delegate
provision that goes into a little bit more detail about the
expectation that the delegate would have the same rights and
privileges of other representatives in that body. Of course,
that is not a treaty with the United States, and it was about
30 years after the Treaty of New Echota. But I do think that
Congress could look to that for some assistance in
understanding the New Echota Treaty provision in the way that
the Tribe likely would have understood it.
Ms. Scanlon. Thank you.
And, Professor Robertson, anything?
Mr. Robertson. Yeah. I am not sure I can add much to that
except in terms of--I think your point is absolutely on the
money, and I think in terms of the importance, it is maybe
helpful to look back to the 1830 Dancing Rabbit Creek Treaty
with which the New Echota negotiators would, of course, have
been familiar. And I think the difference in language must
reflect their intention that this right be more precisely
articulated, and I think that is a reflection--must be, again,
a reflection of the Nation's--or the negotiating teams', at any
rate, commitment to securing the delegate right.
Ms. Scanlon. Thank you.
One more question. Chief Hoskin, I guess, can you just tell
us a little bit about why now, why the push now? What is the
importance to the Cherokee people of seating a delegate at this
time, and what you think that can accomplish?
Mr. Hoskin. Well, personally I feel duty-bound to assert
every single right of every single treaty we have because I
know that our ancestors paid a dear price for it. I can't
imagine leaving this Office of Principal Chief without doing
everything I can to hold the United States accountable for that
as a measure of justice. The council members are here behind
me, and I don't want to speak for them, but they have echoed
this in my conversations with them.
The ``why now'' gets back to the question of why not 100--
or two centuries ago? And, of course, I went through the
history of the Cherokee Nation. This is what I want Americans
to understand. Yes, two centuries we had this right, but did we
possess it in a real way. We didn't possess it in a real way
when the government of the United States suppressed our
institutions almost out of existence.
We are now--again, I am thinking back to my grandfather. He
would be awestruck that his grandson is in the Rules Committee
of the House of Representatives asserting a treaty right that
his ancestors that were at least around for and suffered for.
And so, I think why now, why not now?
Ms. Scanlon. Okay. Thank you.
Mr. Cole. Question, my friend, really quickly, just to make
a point.
This is not unusual. I mean, we have had settlements with
the United States of America and various Indian Nations about
the United States' failure to sustain its treaty rights decades
after, you know, Tribe after Tribe have asserted. And
historically, politically, for reasons that ought to be
embarrassing to all of us, those were not kept at the time, but
later was recognized, yeah, we did the wrong thing.
You know, we have had litigation in Oklahoma involving
Cherokees, Choctaws, Chickasaws on water rights and riverbeds.
And, yeah, we didn't do what we were supposed to do. You are
not asking for this back, but here's the settlement or
something, or you are getting this back, because we just did
the wrong thing.
So, you know, I don't think you can guilt people for not
doing something in a time period that was impossible to do, but
maintaining the right to do it when they had the opportunity to
do it. And I think that is what we are wrestling with here.
But, again, I certainly understand asserting rights after
the fact because they were there, but people just knew, okay,
we are not going to get that. You know, they agreed to it, but
they are not going to keep their word. But now, it is a
different time, and the government of the United States, as my
good friend, the Chief, said, in recent years has done a lot in
various areas to correct some of the inequities of the past.
And I think of that in our own constitutional history. You
know, all men are created pretty equal are pretty clear, but
when they wrote in 1787, didn't apply to women, didn't apply to
Black men, Yellow men, Red men. We figured out over time, Hey,
that is what we wrote, and that is the implication.
And I think that is what you are looking at here. But,
again, that is just my opinion. I thank my friend for allowing
me to insert myself.
Ms. Scanlon. Certainly. And really appreciate everyone's
testimony on helping us figure out a path forward because it
certainly seems like we need to take that path.
Thank you.
Yield back.
The Chairman. Well, thank you very much.
You know, let me ask the panel--I think everybody has asked
their questions, but let me go to Professor Robertson and Ms.
Schwartz and the Chief again, if there is any final things that
you want to say for the record before I yield to Mr. Cole for
his closing remarks, and I will make a final statement as well.
So, Professor Robertson, anything that you want to add for
the record of the hearing?
Mr. Robertson. Yes. Thank you, Congressman.
I just would like to add maybe a little bit by way of
response to a couple of questions that members of the committee
asked a minute or so ago, including this most recent comment by
Congressman Cole and to sort of reinforce the point that he
made.
I think it is important to remember that one avenue that
was closed in pursuing this right to Tribes in general, but to
the Cherokee Nation in particular was the judicial route. It is
important to remember that the case that gave us the phrase
``domestic dependent nation'' was a jurisdictional case in
which the Supreme Court said squarely to the Cherokee Nation,
you can't bring Federal lawsuits. And that case gets dismissed.
And then Georgia's imposition of its laws gets challenged by an
non-Indian who is imprisoned and there is sort of a way around
it. But it is unclear to me how this claim would have been
pursued had the Cherokee Nation chose to prior to the modern
era when the Federal Government has been much more open to
claims by native Tribes.
In response to a couple of questions that Dr. Burgess
raised, one having to do with Senate imposition of obligations
on the House of Representatives, I think it is important to
note that that was actually in the Native American law sphere
commonplace prior to 1871. Every time the Senate negotiated--or
rather ratified a treaty that the executive had negotiated,
virtually without exception there was some funding obligation,
and the House would have to sit down and figure out where to
find the money. This won't sound surprising to you all. But in
1871, in the Indian Appropriations Act, Congress insisted on
the inclusion of a provision saying we are not doing treaties
anymore. From now on we will continue to negotiate with Tribes,
but we are going to call them statutes so that we can have a
say in what the terms are.
The Treaty of New Echota from 1835 falls squarely in the
middle of the period when it was commonplace for obligations
like this to be placed on the House by the Senate. And I think
it is important to sort of have that historical context when
figuring out how to implement that right today, and maybe put
ourselves back into that early 19th century framework because,
you know, the Tribes shouldn't be penalized because the
Congress operates differently today. They should, it seems to
me, be able to benefit from whatever the status quo was at the
time that the treaty was negotiated.
The last point I will make has to do with the question from
Congressman Burgess about the representatives and delegates
from the Dakotas. I think the point is a fair one, but there is
a difference when dealing with the Cherokee Nation and
Oklahoma. When North and South Dakota became States, they
essentially replaced the territory, and so it made sense for
the position of delegate to terminate and for the position of
representative to replace it.
When Oklahoma became a State, that had no impact on the
continuing existence of the Tribes. They continued to exist as
governments. They continued to function through the 20th
century. And so, because it is a different situation, it seems
to me that it makes--it really doesn't make sense to look to an
example like the transition of the Dakotas from territory to
State to figure out what the right answer is vis-a-vis Tribal--
the continuing access or right to a Tribal delegate.
And then, I suppose one final thing I will say is to echo
something that many have said which is to thank the committee
again for holding this hearing. I agree with everyone who said
this is enormously important historically.
I might briefly make a nod to the international community,
which I am sure is watching closely for whatever you may make
of that. Most of you will know that the United Nations adopted,
in 2007, and the U.S. signed on in 2010, a declaration of
rights of indigenous peoples. A move like this to provide
representation, to recognize a treaty right and to enforce a
treaty right from the 1830s would, I think, be something that
people would pay attention to. And the U.S., as Congressman
Cole well knows, in recent years and as, I think, Chief Hoskin
alluded to, has been a global leader in the recognition of
indigenous rights despite some shortfalls and slip backs. And I
think that it would speak well to the integrity of the Congress
to engage in this sort of bipartisan activity on behalf of
indigenous peoples at a time in world history when this is an
issue of which humanity is becoming increasingly aware.
The Chairman. Thank you very much.
Ms. Schwartz.
Ms. Schwartz. Thank you.
I would like to make just a couple of points.
First, with your permission, I would like to read into the
record a portion of the court case that my co-panelist
recommended to this body, the Tsosie v. United States case of
1986. ``A treaty is primarily a compact between independent
nations, and our Constitution declares this Constitution and
the laws made in pursuance thereof and all treaties made shall
be the supreme law of the land and no distinction is there made
between a treaty with a foreign nation and with an Indian
Tribe. A treaty with an Indian Tribe, therefore, is a law of
the land as an act of Congress is, and where such treaty
prescribes a rule by which private rights can be determined,
the court will resort to such a rule. Otherwise, the court must
look to the legislation of Congress for the enforcement of its
provisions.''
I think this stands for the proposition that in this
instance, a court would be likely to look to Congress for the
enforcement of this treaty provision.
Although my co-panelist said that at the time this treaty
was signed, it was commonplace for obligations like this to be
placed on the House without its involvement in the treaty
negotiations, it is important to distinguish that this is an
obligation that relates to the internal workings of the House,
that that sort of obligation was not commonplace and is the
reason that this is being considered really for the first time,
and we don't have much in the way of case law to guide us.
So, in the end, the decision really rests with Congress and
with this body to interpret those treaty provisions.
The Chairman. Thank you.
Chief Hoskin, any final thoughts?
Mr. Hoskin. First of all, Mr. Chairman, wado again for
holding this hearing and to all of the Members, including the
ranking member, my friend, Congressman Cole.
Specifically, Congressman Cole mentioned earlier something
very important in the broad scheme, and specifically to
Congressman Raskin's questions but successor in interest, the
Arkansas Riverbed case, which I think you were referencing, is
an example of Congress doing the right thing to resolve an
issue.
I would, though, use that to direct you to an opportunity
to resolve the successor in interest issue, that Congress dealt
with that in the preamble, the early part of that statute. It
is a good resource to resolve this issue in the favor of the
Cherokee Nation.
More broadly, Mr. Chairman, members, if we start from the
idea that the United States always intended to keep this
promise, that it always intended what it meant, then we have to
get Kim Teehee seated. And I think--I would think there is
universal recognition of that.
In that is the case, and if we recognize that the treaty is
the supreme law of the land, it carries the weight of law, then
I think the Congress is duty-bound to seat Kim Teehee. I know
there is questions about the manner in which she is seated,
very good questions raised today, but I think the conclusion is
inescapable. And I think that conclusion can be reached in this
calendar year, and it is my hope as Chief of the Cherokee
Nation that we achieve that.
And I appreciate that. Wado.
The Chairman. Thank you.
And before I close, I want to yield to my friend, Mr. Cole,
for any final comments.
Mr. Cole. Well, thank you very much, Mr. Chairman. And,
again, I want to thank you personally. This hearing would not
have happened without you making the decision for it to happen,
and certainly working with us on our side of the aisle, and I
am extraordinarily grateful. And I think sometimes it is
difficult to drag people into these issues because they are
complex, and we didn't have to drag you in. You volunteered to
step in all on your own. And I think you set an example, and I
hope other committees of jurisdiction follow your lead. That is
number one.
I want to thank our witnesses. I thought this was
exceptionally good testimony. And as I think I remarked early,
I hope all of you, you know, spoke to Congress because the
questions that were asked by everybody up here are the
questions that our Members are asking, and they do it--it is
not a--I always say Native American issues aren't and never
should be partisan issues. They are--in this case, it is an
institutional issue, it is an issue of sovereignty, it is an
issue of trust obligation. There is a lot of things here, and I
think the questioning really reflected that today.
I do think it was a historic hearing, and I don't know if
you realized how historic it would be when you agreed to do it,
but I am glad you did, because I think these are issues that we
ought to grapple with. They are very tough issues in some ways
about our past, but they are very important issues for us to
deal with.
For one, I tend to think that this does require
congressional action of some sort. You know, I am open to
statute, I am open to resolution. I think the Cherokees have
expressed their willingness to let's just move down the road
and see where we end up and--but whatever.
You know, I am often--I have wrestled with a lot of these
issues in the course of my career here, and seen a lot of
things, mistakes we have made in the past, but--and I
appreciate this hearing because I think we have approached it
were it is never too late to do the right thing. It is not as
if something that happened 150 or 170 years ago can't be
addressed and corrected now. And sometimes that is the right
thing to do.
Sometimes maybe circumstances have changed. And I don't
question anybody's motives wherever they come down on this
issue. There are some really complex things here. There are
some things that deal with the nature of the institution
itself. The election provision is a big one for a lot of House
Members. Nobody has ever stepped on our floor that hasn't been
elected, except, as the Chief pointed out, appointed
Territorial delegates who have.
And I think one of the things that has been very helpful is
making it very clear that we are talking about a delegate
situation here. We are not talking about final passage. We are
not talking about something that can't be overruled on the
floor. We are talking about something we are all very
accustomed to in terms of having delegates. And we have
delegates that represent both parties on both sides of the
aisle. All of our caucuses are familiar with this and how we
handle it.
So I just think this has been an extraordinarily helpful
hearing in clarifying the issues. And, most importantly--and I
know this was one of your main aims, Mr. Chairman--making sure
that the Cherokee Nation had a forum where its claim could be
presented and heard and evaluated in a thoughtful way. That
would not have happened without you. And, you know, others have
had the opportunity to do it and have chosen not to. You seized
the opportunity, and I appreciate that very much.
So I look forward to continuing and working with my
friends. As I was listening to my friend, Mr. Raskin, who I
always learn something, but when he asked, was Delegate Teehee
here, I thought she has been here a lot longer than you have,
partner. Because I worked with her when she was our colleague,
late Dale Kildee's top staffer on Indian Affairs. And, of
course, I had the opportunity to work with her when she was
President Obama's advisor on Native American Affairs. If
anybody thinks she is not qualified to be here, doesn't know
her way around the buildings, we could have her leading tours
to the new freshmen that are coming up and advise them on what
committees they should be on.
I was a fascinating discussion about committees, but I tend
to come down where Chief Hoskin is. Almost everyone--I sit on
the Appropriations Committee, and we have an enormous impact on
Indian country, you know, and I guess if you had to rule
something out, you could say Foreign Affairs, or whatever, but
the reality I wouldn't rule anything out. You know, I think
that is a decision of--you know, any delegate that comes here
can sit on any committee. They just have to go through, you
know, the process. They might not get the committee assignments
they want at first, but eventually you might, so, I mean, we
all live in that world.
But, again, last point, again, the witnesses I thought were
exceptional, and I appreciate the professionalism and the very,
very even-handed approach and the education that you provided
to all of us on the dais, and hopefully through us, through our
colleagues, and the rest of Congress.
So, again, Mr. Chairman, thank you very much for holding
the hearing. I appreciate it. And I think you will look back on
it, once your career is done, which I hope is no time soon, as
something you can be very proud of having done.
The Chairman. Thank you.
Mr. Cole. And appreciate it. Yield back to my friend, the
chairman.
The Chairman. Well, thank you.
And I want to also pay my friend, Mr. Cole, a compliment.
You know, we have worked together for a long time on a lot of
issues. Sometimes we are in agreement; sometimes we are not.
But even when we are not in agreement, you know, the discussion
up here is actually, you know, the way it should be, respectful
of one another. And when it comes to these issues, there is
nobody who is more dedicated and more of an advocate than he
is. And so I--it really is a privilege and honor to serve with
him. He is a really good friend.
And I appreciate--I want to echo what he said. I want to
thank the panelists. You were excellent. And, you know, we do a
lot of hearings. We sit through a lot of hearings. Some
hearings are, like, not particularly useful because nobody ever
answers the questions. You all answered the questions, and they
were tough questions that we were being asked before this
hearing. I think you have, you know, set the record straight,
you know.
And this is where I kind of come down on this. I personally
believe that Delegate Teehee ought to be seated. You know, I
mean, if I--you know, I think this is the right thing to do. As
I have studied this issue, you know, I believe this is the
right thing to do. It is the moral thing to do, and for a lot
of the reasons, Chief, that you have highlighted in your
testimony.
So we have got to find a way to get this done. And, you
know, there are some complications here. Mr. Raskin raised some
issues. You know, colleagues have raised some issues, but they
are not so complicated they can't be worked out, right? I mean,
this is stuff that we can work it out and to get to a point
where everybody, I think, feels relatively comfortable.
And so I think we have to figure out how fast we can move,
and that depends on, quite frankly, a consensus of this body.
Do we have the votes to do this? You know, and we are going to
have to--and we want to do this in a bipartisan way because
this is not a--these issues should not be partisan. And so, we
have to figure this out. We are going to have to reach out to
some of the other committees of jurisdiction to get their input
on some of this stuff. But I don't want that to be an excuse
to, you know, like, 5 years down the road, we have another
meeting and you are, like, what happened? I mean, this should--
this can and should be done as quickly as possible. I mean,
that is my view.
Look, you know, the history of this country is a history of
broken promise after broken promise to Native American
communities. This cannot be another broken promise. And so you
have my word--and I am sure I speak for my friend, Mr. Cole, as
well--that we are going to continue to work with you and to
figure out a way to get, you know, to the finish line here.
And, you know, I don't know what's going to happen in our
elections. You know, I may not be chair of this committee, you
know, in the next year, or maybe a miracle will happen and I
will still be. Who knows?
But if he is, you are in good hands. But it shouldn't
matter. I think we are at--the tone of this hearing today was
such that this was--this is not a partisan issue at all.
I should also add the delegates don't get to vote on
Speaker either, so that is the other thing, you know. So nobody
should----
Mr. Cole. They might get faster action if they did.
The Chairman. Right, right.
But I guess my view at this point is that, you know, you
can pursue two avenues here. One is, you know, a simple
resolution to change the rules to seat a delegate as soon as
possible, even though that is subject to renewal every 2 years;
but at the same time, you can pursue a longer-term statute so
that that no longer is the case. But whatever it is, we have
got to figure out a way to move this quickly.
So I want to thank all of our witnesses for being here
today and for sharing your expertise.
I want to thank all of the members of this committee who
participated in this productive conversation, and I look
forward to seeing what comes next.
So without objections, the Rules Committee stands
adjourned.
[Whereupon, at 12:00 p.m., the committee was adjourned.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]