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If seated, a Cherokee delegate could make a big difference in Congress

If the House agrees to seat the delegate, it would fulfill a nearly 200-year-old treaty obligation with the Cherokee Nation.

- October 4, 2022

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.

An 1835 treaty grants the Cherokee a delegate in Congress

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.”

The Cherokee delegate would be unlike the others

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.

Delegates have served in Congress since the 18th century

Nonvoting members have served continuously in Congress since the late-18th century. Under a plan first devised in a committee chaired by Thomas Jefferson, delegates served in Congress until a statehood law was passed for their territory. The Ordinance of 1784 first granted these delegates “the right of debating, but not voting,” language that reappeared in the Northwest Ordinance.

Once seated, delegates have played a unique and unusual role in Congress. They served on committees, drafted legislation, and often advocated for statehood for their territories. After the Spanish-American War and the racist legal decisions known as the Insular Cases, the status of U.S. territories changed. Both the Philippines and Puerto Rico were granted nonvoting “resident commissioners” in Congress. In the 1970s and 1980s, Congress created delegate positions for D.C. and the territories of Guam, the U.S. Virgin Islands and American Samoa. The Northern Mariana Islands gained a delegate in 2009.

Today, each delegate serves as a linchpin between the federal government and the territories or the District. On the one hand, the delegate provides a formal voice for citizens living outside the states. Yet throughout its history, the institution of delegate has served as a reminder of U.S. empire. It has also highlighted enduring racial inequalities in Congress: The roughly 700,000 residents of Washington D.C., along with roughly 3.5 million people living in the U.S. territories — 98 percent of whom are racial or ethnic minorities — are represented by members of Congress who lack the right to vote.

Delegates are second-class members of Congress

Delegates are a “strange anomaly” in Congress, as political scientist Abraham Holtzman once wrote, often overlooked by scholars and the general public. Students learn in civics classes that there are 435 members of the House of Representatives, not 441, and that representatives serve two-year terms, which ignores the four-year term of Puerto Rico’s resident commissioner. The general dearth of knowledge about the delegates reflects a broader lack of awareness about the political status of Washington, D.C., and the territories.

Once in the Capitol, nonvoting delegates operate on the congressional periphery. They are unable to vote on the final passage of legislation or on other floor votes like the election of the speaker. Because the law creating their position can change, their status in Congress is contingent and derives from statute, not the Constitution. Their positions have even been revoked by a vote of their peers, as in 1875, when Congress revoked D.C.’s delegate position to quash Black political power during Reconstruction.

Delegates can still make a difference

Yet political science research shows that far from being symbolic members, delegates can make a difference in Congress. For example, they can be effective legislators, sponsoring and co-sponsoring bills to advance their agenda. They field staff, serve on committees, work within their party, and collaborate with other delegates.

Depending on party control, delegates vote in some procedural contexts on the House floor, although their vote doesn’t count if decisive. My own research has shown how delegates use tools like committee hearings, franking privileges (the ability to send mail for free), and member organizations to pursue strategic goals, lobby voting members, and serve as the sole elected voice for their constituents in the federal government — making a difference even without a vote.

Elliot Mamet (@emamet) is a political scientist who recently earned his Ph.D. from Duke University.