The Yale Law Journal


Promises of Nonstate Representatives

17 Oct 2007

Opponents of congressional representation for Puerto Rico emphasize the Constitution’s apparent statehood requirement: “The House of Representatives shall be composed of Members chosen . . . by the People of the several States.” Even José R. Coleman Tió, a supporter of nonstate representatives, acknowledges the “daunting legal hurdle” that the statehood requirement poses. In his comment, Coleman proposes various legal theories for surmounting this “obstacle[].” In response, Christina Duffy Burnett argues that none of Coleman’s arguments exempt Puerto Rico from the statehood requirement. Similarly, John C. Fortier uses his title to say it all: The Constitution is Clear: Only States Vote in Congress. Both Coleman and his responders frame the issue of Puerto Rican representation in a way that prioritizes statehood above all else. This focus entirely ignores, however, the United States’ history of supporting nonstate delegates for Indian tribes. The history of treaty-guaranteed congressional delegates for Indian tribes raises doubts about the power and determinative reach of the statehood requirement. U.S. negotiated treaties, particularly with the Cherokee Nation, reveal statehood to be more of a starting assumption than a determinative prerequisite for congressional representation.

I. The Treaty of Echota

It is worth starting with the history of negotiated Indian delegates before returning to Coleman’s comment and the responses it has generated so far. In 1778, a new nation negotiated its first Indian treaty with the Delaware Indians. This early treaty included as a provision a nonbinding mutual intention “to form a state whereof the Delaware nation shall be the head, and have a representation in Congress.” A few years later, the Cherokee Indians negotiated a more meaningful provision in their 1785 treaty: Cherokees according to the treaty had a “right to send a deputy of their choice, whenever they think fit, to Congress.” In 1831, however, the Supreme Court distinguished the right to send a “deputy” from the right to send a “delegate.” In Cherokee Nation v. Georgia, Chief Justice Marshall reasoned that a “deputy” was no more than an agent, “such as any other company might be represented by.” Specifically, a deputy was not entitled to “sit in the congress as a delegate.”

Finally, in the 1835 Treaty of New Echota, the Cherokees negotiated the unequivocal right to a congressional delegate. Perhaps in response to the Supreme Court’s decision, the Treaty specified that the Cherokee delegate would be entitled to sit in the House of Representatives. Furthermore, while the treaty with the Delawares made statehood an element of the promised representation, the Treaty of New Echota did not condition this right on statehood. In fact, the Treaty explicitly contemplates that the Cherokee will be removed west of the Mississippi River, beyond the territorial limits of the states. Article 7 of the Treaty reads:

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 guarantied [sic] 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.

The treaty is silent on whether the Cherokee delegate would have voting rights. Given the limited historical record, there is no way to resolve the parties’ intentions on this point. According to canons of construction for federal Indian law, however, ambiguities in treaty clauses are resolved in favor of the tribe. Therefore, it is plausible, and even likely, that the Cherokee congressional delegate would have had full voting rights.

In an earlier article, I presented the history underlying this provision as well as the potential present importance of this right to the Cherokee Nation. Here, I will focus only on what the Cherokee delegate right can teach us about the legality and propriety of statutory recognition of delegates from Puerto Rico or the District of Columbia.

II. Legal Recognition of Nonstate Delegates

First, the Treaty of New Echota provides precedent for recognizing nonstate delegates. All Indian treaties prior to 1835 tied the right to congressional delegates to future statehood. The Treaty of New Echota, however, explicitly abandoned the statehood requirement. Therefore, early in our history, Congress contemplated and approved a nonstate Indian congressional delegate.

Article 7 of the Treaty of New Echota has never been tested—the Cherokees have never attempted to claim the right guaranteed for them by the Treaty by sending a Cherokee congressional delegate to Washington. Interestingly, however, during the Civil War, the Confederate government recognized the Cherokee delegate who became a delegate of the Confederate Congress, based on equivalent delegate language in their treaty with the Confederate government. Missing from Fortier’s argument that the Constitution’s prominent and frequent references to states in the Constitution demonstrates a statehood requirement for representatives, is a recognition that closely on the heels of the constitutional convention nonstate based delegates were contemplated and, with the ratification of the Treaty of New Echota, approved. The history of negotiated Indian delegates casts doubt on claims that statehood is an absolute requirement for either Puerto Rican or D.C. delegates.

III. The Propriety of Nonstate Delegates

Second, the history of these treaties shows that nonstate delegates can help satisfy the conflicting demands of democracy and allowance for difference. Coleman’s avowed purpose is to address Puerto Rico’s “democratic deficit” through “innovative and politically feasible” statutory recognition of Puerto Rican representation. But by relying upon a constant critique of the District-benefiting H.R. 1433 to bolster by comparison the strength of Puerto Rico’s claim for representation, Coleman fragments what should be a nationwide call to recognize these atypical delegates. Though I live in Virginia, my America fails to live up to its ideals—and I consequently am harmed—by our failure to afford democratic representation to those who live in the District of Columbia and the territories.

In 1991, the nonvoting delegate from American Samoa urged Congress to recognize Indian representation because by doing so Congress “could perhaps be salvaging the only promise ever made to the native Americans that can still be kept.” Coleman’s argument would be strengthened if instead of relying upon critiques of the present effort to finally afford representation to those living in the District, it borrowed from the perspective of the Samoan delegate. As Coleman’s advocacy of a Puerto Rican delegate highlights, the goal should not be to insist that all delegates fit within one statehood box—a box, which the Indian treaty history suggests never truly existed. Rather, the goal should be to work on solutions for every group, even differently situated groups, who suffer a democratic deficit.Thus, while Duffy Burnett rightly insists that there ought to be room for differences across states, must representation be tied to the state model? That is the question raised by the District of Columbia’s separation, Puerto Rico’s deliberate middle ground between independence and incorporation, and arguably even by the Cherokee Nation’s concession of Georgia for a promise of representation.

There are no easy answers, but our imagination should not be falsely constrained by the belief that delegates necessarily must represent states and states alone.

Ezra Rosser is an Assistant Professor of Law at American University Washington College of Law, and he teaches Federal Indian Law.

Preferred citation: Ezra Rosser, Promises of Nonstate Representatives, 117 Yale L.J. Pocket Part 118 (2007),