Will a Cherokee Nation Delegate be Seated in Congress?

There’s a new delegate in town: Kimberly Teehee, a former Obama White House Native American adviser, who was nominated by the Cherokee Nation in 2019 to become the House’s seventh nonvoting member. If the House agrees to seat the delegate, the move would expand the size of the House of Representatives and fulfill a nearly 200-year-old treaty obligation with the Cherokee Nation.

With the power to debate but not vote, delegates are formally second-class members of Congress. House rules deny them the most important power in a legislature: the power to vote on the House floor like every other member. Still, my research shows that delegates have creatively used their positions to represent their constituents and advance their goals. Delegates can make a difference in Congress — even without a vote.

The Cherokee Nation has nominated a delegate to Congress under the terms of the 1835 Treaty of New Echota. Controversial, the treaty provided the legal basis for the notorious forced resettling known as the Trail of Tears, where over 4,000 Cherokees died and over 100,000 Indigenous people were brutally relocated by state militia and federal troops.

The Treaty of New Echota also promised the Cherokee a delegate in the U.S. House. So in 2019, the Cherokee Nation named Teehee as delegate. The Cherokee Nation has recently launched a campaign to seat Teehee by the end of the current Congress. The nomination is pending before the House Rules Committee, which said it will hold a hearing “soon.”

If seated, the delegate would be the first congressional delegate who was not from a U.S. territory or Washington, D.C. Because most citizens of the Cherokee Nation are simultaneously residents of a U.S. state, they would potentially cast two votes for members of Congress — one for their voting representative and one for their nonvoting Cherokee delegate.

It’s not clear who must act to seat the delegate. The Treaty of New Echota says that the Cherokee “shall be entitled to a delegate in the House of Representatives of the United States whenever Congress shall make provision for the same.” The Cherokee have argued that only a House vote is required, but there are legal questions about whether the House has authority to admit delegates on its own. All previous delegates have been admitted through the enactment of legislation passed by both the House and Senate and approved by the president.