Written in the Wind

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Nine score and seven years ago some of my fathers brought forth, upon this continent, a new treaty, conceived in deceit, and dedicated to the proposition that all Native Americans should be driven from the lands the U.S. government claimed.

This new one was styled the “Treaty with the Cherokee, 1835.” Also called the Treaty of New Echota. New Echota was the capital of the Cherokee Nation; today it’s just a historic site in Gordon County, Georgia, to mark one of many treacheries by treaty against Indians.

My ancestors signed both sides of the treaty. Among the twenty men with Cherokee or near-Cherokee names were Tesa-ta-esky, Tah-yeske, Cae-te-hee, Te-gah-e-ske, and Jesse Half-breed. Signing in behalf of the United States was General William Carroll, who may have been related to my maternal grandfather, Ed Carroll. (As were in family lore the Carroll who signed the Declaration of Independence and the one who signed the United States Constitution. After U.S. Senator Elizabeth Warren’s experience with grandparental recollections, I’m not sure I should rely on my own: by such carefree genealogy, I might also claim as distant cousin, Carol Burnett. Still, it’s my granddaddy’s story and I’m stickin’ to it.)

This was the treaty that led to the infamous Trail of Tears. Despite specific promises to remove the Cherokees “comfortably, and so as not to endanger their health,” it was essentially a forced march of eight hundred miles to Oklahoma under horrific winter conditions that killed four thousand of them.

There was another “promise” the Cherokees are, even today, asking the United States to keep at long last.

Article 7 of the treaty deemed 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 to them in this treaty.” To that end the Indian nation “shall be entitled to a delegate in the House of Representatives of the United States whenever Congress shall make provision for the same.” Delegates don’t get a vote; they do get access — a huge advantage over people who don’t.

In the law, the word “shall” has a particular power: it means something is required to be done. Has to happen. Drafters of law and treaty intend it to happen. Courts intend it to be upheld.

Yet the drafters of this Treaty with the Cherokee were lawyers. Lawyers — the despicable ones anyway — like weasel words; they put one in that Article: “whenever.” Whenever Congress gets around to it. Could be now. Should be sometime soon. Could be never.

I specifically asked Joe Neguse, the Congressman from my own district in Colorado, if Congress should get around to seating a delegate from the people who paid for that delegate with four thousand lives. He specifically declined to answer but said he’d be sure keep my thoughts in mind. There aren’t many better than him in the House of Representatives.

And the Cherokee?

Nine score and seven years from now, I’m guessing they’ll still be asking for their promised seat at the table.