WASHINGTON, D.C — Votes are still being counted from last week’s historic election in which Democrats retained control of the U.S. Senate following widespread fears of a Republican “red wave” that never truly materialized.

But while the U.S. House of Representatives remains in play, Democrats are still in charge of the chamber for the remainder of the 117th Congress. And as lawmakers return to work this week, they are using their power to take up a tribal rights issue that could help their party make history once again in the nation’s capital.

On Wednesday, the House Committee on Rules is taking the first step toward seating a tribal government delegate in the chamber. More specifically, the hearing focuses on what it would take to finally bring the Cherokee Nation into the halls of power on Capitol Hill, nearly 200 years after the United States made such a promise by treaty.

“After appointing a Delegate to Congress in 2019, and many visits to Congress for outreach and education on our 1835 treaty rights, we are elated that a congressional hearing on our Cherokee Delegate has been set for Wednesday,” Principal Chief Chuck Hoskin Jr. said in a statement, issued while he was in Washington, D.C., last week as the U.S. Supreme Court took up a long-running Indian Child Welfare Act case.

Also in town for the hearing in Haaland v. Brackeen was Kim Teehee, a Cherokee citizen who has been designated by the tribe to serve as its delegate in the House of Representatives. The former Congressional staffer and former White House adviser plans to accompany Hoskin to the long-anticipated hearing.

“Delegate Teehee and I look forward to attending this monumental hearing for all of Indian Country in which we take the step forward in getting Kim Teehee seated and ensuring the United States keeps its word to our tribe,” the chief said.

The Cherokee Nation is invoking the 1835 Treaty of New Echota in its quest to maintain an official voice in the U.S. Congress. Article 7 of the government-to-government agreement asserts that the tribe “shall be entitled to a delegate in the House of Representatives of the United States whenever Congress shall make provision for the same.”

In fact, a provision for Congress to seat a tribal delegate surfaced as the treaty was eventually signed in New Echota, the capital of the Cherokee Nation at the time. Although the bill was tied to the eventual removal of the tribe on what would later be known as the Trail of Tears, it marked the first known recognition of the need to bring the voices of tribal government to the U.S. Capitol.

“Today, we have several American Indian and Alaska Natives (AI/AN) in Congress but what we don’t have is a voice in Congress to speak to our unique interests,” Aaron Payment, the former chair of the Sault Ste. Marie Tribe of Chippewa Indians and former vice president of the National Congress of American Indians, aid in an opinion on Indianz.Com last month.

NCAI, which is the largest inter-tribal advocacy organization, supports the Cherokee Nation’s efforts. A resolution adopted at the group’s annual conference in 2019 points out that “certain tribes have treaties that included the right to be represented by a delegate in the U.S. House of Representatives.”

According to the Congressional Research Service, a non-partisan arm of the legislative branch of the federal government, the very first tribal treaty with a delegate provision dates to 1778, when the historic Delaware Nation secured a promise that has never been fulfilled. Signed at Fort Pitt in present-day Pennsylvania, the document marked the first time the brand-new United States of America executed a formal agreement with an Indian tribe.

Some 50 years later, the Choctaw Nation made sure to include a request for a “Delegate on the floor of the House of Representatives” in a treaty signed at Dancing Rabbit Creek in 1830. The tribe too was eventually forced out of its homelands to present-day Oklahoma.

The CRS report documenting the tribal treaty history was completed in July. It is titled “Legal and Procedural Issues Related to Seating a Cherokee Nation Delegate in the House of Representatives” — close in name to the upcoming hearing, incidentally — and it outlines the ways in which the promise made at New Echota could be fulfilled in the present day.

The report compares the Cherokee Nation’s situation to that of the District of Columbia, the seat of the U.S. government, and to various U.S. territories, several of which have delegates seated in the House. But it points out that a tribal delegate would not vote on bills that come to the floor of the chamber since the Cherokee representative is not technically elected by residents of a particular state.

Still, according to the CRS, the Cherokee Nation’s delegate could still participate in House committee business and vote on committee matters, a power that delegates from U.S. territories like American Samoa currently exercise. And the tribal delegate might even be able to speak on the floor of the House, the report notes.

That’s where Teehee’s background and expertise would help advance Indian law and policy. She made history in 2009 as the first person ever to be named as a Native American affairs adviser to a sitting U.S. president. She served in Barack Obama’s administration for three years, exercising authority on key matters as part of the White House Domestic Policy Council.

Before landing a high-profile position at the White House, Teehee worked for the late Dale Kildee, a former Congressman who helped run the Congressional Native American Caucus, a bipartisan group of lawmakers. Her efforts across party lines helped ensure Indian Country bills of major importance were brought up for consideration and were enacted into law — a skill that even most elected members of Congress don’t have when the first arrive to Capitol Hill.

Still, even with the roadmap provided by CRS and the hearing on Wednesday, time is running out for Democrats to seat Teehee as a tribal delegate. The 117th Congress is due to conclude at the end of December, and then the legislative process will have to start up all over again in January 2023.

And once Congress reconvenes for its 118th session, Republicans might very well be in charge of the House of Representatives. According to almost every major mainstream news outlet, the GOP has secured 212 seats as a result of the November 2022 election, compared to 204 for the Democratic party.

Victories by just six more Republican candidates — a small-enough red wave — would put their party in control of the House in the 118th Congress, thus changing priorities in a way that could leave the tribal delegate low on the agenda. But Democratic leaders remain hopeful that they can retain their hold on the chamber, if even by a small margin.

“Who would have thought two months ago that this red wave would turn into a little tiny trickle, if that at all? But we never believed that,” Rep. Nancy Pelosi (D-California), the Speaker of the House, said on CNN on Sunday. “We believed.”

The hearing on the Cherokee Nation’s delegate takes place at 10am on Wednesday in Room H-313 of the U.S. Capitol building. Three witnesses are on the witness list:

Should Teehee be seated as a tribal delegate, her presence would boost the number of American Indians, Alaska Natives and Native Hawaiians in Congress, which is due to drop considerably from a historic high of six in the current session. So far, only three Native people are expected to return to the House for the 117th session.

Rep. Sharice Davids (D-Kansas), a citizen of the Ho-Chunk Nation, easily won re-election in her district last week. Rep. Mary Peltola (D-Alaska), who is Yup’ik and is the first Alaska Native person to secure a seat in Congress, is leading in unofficial returns but is not yet confirmed as the winner due to changes in the way elections are conducted in the 49th state.

Kai Kahele (D-Hawaii) won’t be returning to the House after he did not seek re-election — instead mounting an unsuccessful run for governor of Hawaii. He was the first Native Hawaiian in the chamber.

Yvette Herrell (R-New Mexico) won’t be back next year either. The Cherokee Nation citizen lost her re-election bid last week by only about 1,300 votes.

Markwayne Mullin (R-Oklahoma) won’t be in the House either. But the Cherokee citizen isn’t going far, having won a special election that makes him the first Native person in the U.S. Senate in nearly two decades.

Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation, rounds up the Native caucus in his chamber, having easily won re-election in his district last week. Incidentally, he serves as the senior-most Republican, otherwise known as the ranking member, on the House Committee on Rules.

Legal and Procedural Factors Related to Seating a Cherokee Nation Delegate in the U.S. House of Representatives (November 16, 2022)