Burning Phoenix

Written by Allogan Slagle for the United
Keetoowah Band of Cherokee Indians, 1993.

BURNING PHOENIX:
A Study of the Federal Acknowledgment,
Reorganization and Survival of
THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA,
and of CHEROKEE NATION OF OKLAHOMA'S Efforts to Terminate the Band
ALLOGAN SLAGLE, FOR THE UKB: 1993

THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA AND ITS
INTERGOVERNMENTAL RELATIONSHIP WITH THE UNITED STATES
(COPYRIGHT ALLOGAN SLAGLE 1993)

ACKNOWLEDGMENTS AND DEDICATION
FOREWORD AND ABSTRACT
A BRIEF UKB CHRONOLOGY
1. THE STATUS OF THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN
OKLAHOMA UNDER THE FEDERAL ACKNOWLEDGMENT CRITERIA AT 25 CFR 83.7....1
2. THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA AS A MODERN
AUTONOMOUS TRIBAL ENTITY............................................17
3. KEETOOWAH COHESIVENESS AND CONTINUITY AFTER 1906.................33
4. THE UNITED KEETOOWAH BAND, IRA, OIWA, AND THE "KEETOOWAH SOCIETY,
INC., OPINION"(1937)................................................40
5. THE ACT OF AUGUST 10, 1946.......................................59
6. LAND ACQUISITION RIGHTS, OIWA, AND THE ACT OF AUGUST 10, 1946....95
7. APPROVAL OF THE UKB CHARTER, CONSTITUTION AND BY-LAWS...........100
8. THE OCTOBER 3, 1950 UKB REFERENDUM..............................111
9. THE UKB DURING THE TERMINATION ERA..............................116
10. THE BELLMON BILL AND THE "REVIVAL" OF CHEROKEE NATION..........152
11. THE ATTEMPTED TERMINATION OF THE UKB...........................165
12. POSTSCRIPT.....................................................199
13. APPENDIX I: SCHOLARLY MONOGRAPHS, THESES AND DISSERTATIONS, CHEROKEE
GOVERNMENT DOCUMENTS, PUBLICATIONS AND OTHER WRITINGS..............226
14. APPENDIX II: DOCUMENTS, LAWS AND RESOLUTIONS OF THE UNITED KEETOOWAH
BAND OF CHEROKEE INDIANS IN OKLAHOMA...............................230
15. APPENDIX III: BIBLIOGRAPHY -- TREATIES, AGREEMENTS, STATUES,
REGULATIONS, RULES, OPINIONS AND CASES.............................238
16. APPENDIX IV: GOVERNMENT DOCUMENTS OF THE UNITED STATES.........275
17. APPENDIX V: BIBLIOGRAPHY -- AVAILABLE MINUTES AND OTHER MATERIALS
RELATING TO UKB MEETINGS EVINCING CONTINUOUS GOVERNMENTAL FUNCTIONS AND
POLITICAL ACTIVITY.................................................312
18. APPENDIX VI: BIBLIOGRAPHY -- THE CNO REGISTRATION/ DESCENDENCY LIST
AND THE UKB ROLL; SECRETARIAL APPROVAL OF UKB ENROLLMENT DETERMINATIONS;
SECRETARIAL AUTHORITY OVER IRA ELECTIONS; RECOMMENDATIONS...........198

A, D

ACKNOWLEDGMENTS
This narrative is a response to the requests of staff of the United
States Congress and the Tribal Council of the United Keetoowah Band of
Cherokee Indians in Oklahoma (UKB) for an explanation of the UKB's
history and circumstances. The document demonstrates the continuous
historical existence of the UKB since recognition, and the Band's
autonomy from any other political entity or any non-governmental social
or religious organization(s) that use the names "Keetoowah" or
"Cherokee." The author gratefully acknowledges the support of generations
of UKB leaders and members, the Officers and Council Members of the UKB
and their families, Frank Boudinot and Levi Gritts, Dr. Georgia Leeds and
other scholars and friends, Acting Secretary Abe Fortas, and especially
D'Arcy McNickle. The author thanks others who have contributed to the
compilation of source material for this narrative. The author also wishes
to acknowledge the support of Keetoowah councilmen, staff, and members
whose contributions and editorial suggestions made the completion of this
narrative possible.

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* * *

* * * * *
* * * * DEDICATION: * * * *

TO THE ETERNAL KEETOOWAH PHOENIX

AND TO HER CHILDREN

AND

TO D'ARCY MCNICKLE

WHO SAID THE EMPEROR WAS NAKED

* * * * AND POINTED * * * *
* * * * * * * * *

* * * * * * * *

* * * * * *

* *

TALKING POINTS

1) Federal legislation greatly diminished the inherent sovereignty
of Cherokee Nation, leaving certain, primarily administrative functions
intact (1890-1906), under the direct supervision of the President and his
agent, generally the Secretary of the Interior. References to the
"dissolution" of the Cherokee Nation government appeared in the history
and in the language of certain legislation. The government was
essentially dissolved, with the exception of certain residual powers, on
4 March 1906.

2) Having failed at efforts to keep a tribally-elected, rather
than presidentially-appointed, Cherokee government in force, the
Keetoowahs realized that they were on their own, and resolved to rely on
their original governmental form, the foundations of which they brought
with them to Oklahoma. Keetoowah Society, Inc., in anticipation of the
eventual dissolution of the Cherokee Nation, acquires a Federal Charter
(20 September 1905; see 24 April 1944 determination of D'Arcy McNickle,
Tribal Relations Branch).

3) Subsequent Federal legislation restored certain aspects of the
inherent sovereignty of Cherokee Nation, dealing with administrative
functions, in order to protect residual property interests (1906-1930s).

4) Acting Solicitor Frederic L. Kirgis found the Keetoowah Society
ineligible to reorganize under OIWA and IRA. (Opinions of the Solicitor of
the Department of the Interior Relating to Indian Affairs: 1917-1974,
Vol. I (Washington, D. C.: U. S. Department of the Interior, 1975), p.
774; Opinion, Keetoowah -- Organization as a Band 29 July 1937)

5) The Department of the Interior found the Cherokee Nation,
organized under the revised 6 September 1839 Constitution, a government
essentially dissolved in 1906, to be ineligible as such to reorganize
under OIWA and IRA. Field investigators found Cherokee citizens, with the
exception of the Keetoowahs, have abandoned tribal relations and have no
interest in reorganization. [MEMO TO INDIAN ORGANIZATION, 25 October 1937,
from Director of Lands (WDW) to Daiker, Indian Organization (enclosure
1310901)]

7) Congress, on the advice of the Acting Secretary and other
agencies, passed the 10 August 1946 Act acknowledging the UKB's
eligibility to reorganize under OIWA and IRA. The legislative intent and
statute itself contemplate recognition of a united entity, initially a
coalition government.

8) UKB reorganized under OIWA and IRA, adopting a Charter,
Constitution and By-laws in a Federal secretarial election on 3 October
1950, and proceeded to function with virtually no Federal assistance as
a federally-acknowledged tribe. The Charter provided for the eventual
recognition by sub-charter of any other Cherokee descendant group with
whom its own members are allowed to share membership, at the discretion
of the UKB Council. During Termination, the BIA refused to cooperate with
every development proposal in keeping with the OIWA and IRA that the UKB
Tribal Council submitted.

9) After 1960, the BIA and Cherokee Nation or Tribe investigated
the possibility of establishing services and programs for Cherokees in
the 14 county region, formerly Cherokee Nation, concluding that the only
possible solution was to make the UKB the vehicle for providing programs
and recognition.

10) Once Cherokee tribal programs were off the ground, the UKB had
little success retaining control of the very programs they fostered, and
even access to services. Independent ventures failed as well, partly due
to the (documented) collusion of their own legal counsel, Earl Boyd
Pierce, with BIA and CNO officials to stop the UKB.

11) The Act of Oct. 22, 1970, 91st Cong., 2nd Sess., P. L. 91-495,
84 Stat. 1091 (1970), the Bellmon Bill, "Authoriz[ed] Each of the Five
Civilized Tribes of Oklahoma to Select Their Principal Officer . . . ."
Federal court challenges determined that the presidentially - or
secretarially - appointed Principal Chiefs of Cherokee Nation since 1906
were bona fide heads of state. Other litigation addressed the question
whether the Cherokee government was terminated in 1906. On 2 October
1975, Commissioner Morris Thompson and Principal Chief Ross O. Swimmer
approved a draft CNO Constitution determining that the automatic
citizenship class shall consist of the Cherokee Dawes Commission
enrollees, and that descendants shall be eligible for registration as
member-descendants.

12) Commissioner Louis Bruce, in American Indian Tribes and their
Federal Relationship, Plus a Partial Listing of other United States
Indian Groups (Wash., D. C.: U.S. Dept. of Interior, BIA, March, 1972)
declared that the UKB is a fully recognized Class 1 OIWA/IRA tribal
entity, while Cherokee Nation remained an unorganized Class 3 service
population.

13) On 5 July 1976, Cherokee voters adopted the draft Constitution,
purporting to supersede the 1906 constitution, but CNO leaders claim in
Federal court that the old Constitution was dead in 1906, or that the
present government is the full successor to the 1839 - 1906 government,
as circumstances demand. The 1976 Constitution purported to sanction
affiliation of any CNO registree with any "clan" or other subordinate
entity within CNO. The Harjo case determined that the 1906 and related
Acts did not terminate the Five Tribes as such, and that the 1936 Act
assured them the enjoyment of their inherent sovereignty, as a general
principal. That case did not consider or discuss the 25 October 1937 Land
Division determination regarding the eligibility of Cherokee Nation to
avail itself of the benefits of OIWA and IRA, or contain any reference to
the intent of Congress, the BIA and the UKB regarding the implications of
UKB reorganization. No provision at Federal case law, and no Act of
Congress, allowed CNO to avail itself of the benefits of OIWA and IRA
reorganization free of the duty of actually taking the steps to
reorganization.

14) In the Federal Register, Vol. 44, No. 26, Tuesday February 6,
1979, pp. 7235-7236, the Secretary of the Interior listed the UKB as a
federally-recognized, service-eligible entity. The Department has since
characterized this and similar publications as binding determinations of
the Department regarding the recognition of tribes, both in Federal
litigation and in congressional hearings.

15) Characterizing the organization of federally-acknowledged
tribes listed in the 6 February 1979 Federal Register notice, on 20
November 1979, Ms. Patricia Simmons, Tribal Relations Specialist,
submitted to the Chief, Branch of Tribal Relations, a detailed report
titled, "Organizational Status of Federally Recognized Indian Entities."
Simmons surveyed a category (p. 2) of "Officially Approved Organizations
Pursuant to Statutory Authority (Indian Reorganization Act: Oklahoma
Indian Welfare Act; and Alaska Native Act), finding (p. 3), UKB had a
Council organized under a Federal Corporate Charter. Cherokee Nation
(with a Council) was listed In the "Other" category of "Officially
Approved Organizations Outside of Specific Statutory Authority," (p.7).

16) Principal Chief of Cherokee Nation Ross O. Swimmer denied UKB's
historical existence for the first time of record to Oklahoma Senator
Henry Bellmon, in a Letter, 27 April 1979. Swimmer claimed the UKB was
"created" by the accidental inclusion of their name in the 6 February
1979 Federal Register notice; see also Letter, 30 April 1979, Principal
Chief of Cherokee Nation Ross O. Swimmer to Oklahoma Senator David Boren,
denying UKB's historical existence.

FOREWORD

At the end of this narrative, the author will reflect upon the
implications of the title. At the outset, it is appropriate simply to
note that the UKB long has applied the metaphor of the Phoenix rising
from ashes to describe its own character and destiny. An account of the
attempts of the modern Cherokee Nation of Oklahoma government to usurp
the UKB's "nest" -- the Band's sovereignty, property rights,
opportunities, character and destiny -- are as important to this
narrative as the story of the Band's reorganization. The Postscript will
reflect upon the implications of the Burning Phoenix as a living metaphor
for the UKB in the face of termination.

A BRIEF UKB CHRONOLOGY

PRECONTACT TO 1730s: Ani-gi-du-wah-gi, the Keetoowah People, find
their source at Keetoowah, a Mother Tribal Town in Swain County, North
Carolina, and its affiliated smaller towns. Political succession proceeded
through elected Captains, a Chief, and Beloved Women.
1730s TO REMOVAL: Despite cultural and political disruption between
the American Revolution and the Removal period, the Keetoowah Indians
retained what they could of their primary rules and ways. They enforced laws
through customary sanctions and the law of blood, maintaining their own local
tradition despite major changes in general Cherokee society. The Keetoowah
Indians were part of the core Red/War groups who had allied with the French.

Some began to move to what became Arkansas territory as early as the end of
the Seven Year War in 1763. The Keetoowahs who allied with the British during
the Revolution joined that first wave of emigrant Keetoowahs. The
Chickamaugas followed after their attack on a white trading party at Muscle
Shoals, Tennessee River, in 1794. They all settled among the Western
Cherokees (Old Settlers). The U. S. officially recognized Western Cherokee
Tribal Council and their territory in 1817. Other Keetoowahs followed, first
to Arkansas and then to Indian Territory. By 1819, they numbered about 6,000.

The U. S. Supreme Court established some of the most important case law
regarding Cherokee Nation during this period:
Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1 (1831).
Worcester v. Georgia 31 U. S. (6 Pet.) 515 (1832).

1838-1839, FORCED REMOVAL TO ARKANSAS AND OKLAHOMA:
The remnants of the War Party in the eastern states were too weak to oppose structural changes in
Cherokee government. As removal of the Eastern Emigrants proceeded, the
Keetoowah Indians lived as they always had, relying on subsistence
agriculture, fishing and hunting, practicing the old religion, maintaining
social cohesiveness at various towns in Cherokee territory, with gatherings
and daily interactions across factional and family lines. The Western and
Eastern Cherokees were forced to form a coalition government under a
Constitution dated 6 September 1839. John Ross (Chief from 1828-1866)
maintained support from the Keetoowah traditionals because of his opposition
to removal and his marriage to a fullblood.

1838 to 1860, KEETOOWAH REORGANIZATION IN OKLAHOMA: Knowing that Civil
War would threaten their government and society, and committed to honoring
treaties with the U. S., Keetoowahs reorganized under a Constitution written
by a fullblood Cherokee Baptist Minister, Budd Gritts (1858-1859). Followers
of the Jones family (non-Indian church leaders) also were instrumental in the
reorganization of the Keetoowahs in the 1850s. Starting from a base of born
Keetoowahs, the band drew in and adopted fullbloods from all nine Districts,
but primarily from a region composing five northeastern Oklahoma counties
today. Called the Keetoowah Society, they revived the role their Mother Town
of Keetoowah enjoyed in pre-contact and pre-Removal historical times. Their
leaders were "Captains," under a Head Captain, or "Chief." In 1857, the War
Department offered the town the military reservation of Fort Gibson, from
which the Cherokee Council created the town of Keetoowah. The Cherokee
Council voted to move the Capitol there from Tahlequah, but Chief Ross vetoed
the plan. The Keetoowahs elected Louis Downing their Head Captain, and later
helped him to victory as Principal Chief.

1860-1865, KEETOOWAH INDIANS IN THE CIVIL WAR:

All loyal Keetoowahs opposed the Southern Confederacy and supported the Union.
The Pin Indians, a particularly aggressive faction, fiercely resisted assimilation and invasion
by all non-Indians. The Council of Keetoowah town (Fort Gibson) met until
May, 1863. Convening at Cowskin Prairie that year, the Keetoowahs denounced
the Confederate Cherokees and celebrated the abolition of Slavery. While the
Keetoowah Indians remained loyal to the end of the Civil War, they shared the
common humiliation of all Cherokees resulting from the punishment of Cherokee
Nation for its official alliance with the Southern Confederacy. The 1866
Treaty abrogated all others to the extent they were inconsistent, but the
Keetoowah delegates to the Treaty convention reluctantly signed.

1866-1890, UKB FACTIONALISM AND CONFLICT: Immediately after the Civil
War, conflicts arose over the purposes and direction of the Keetoowah
organization. While some Keetoowahs wanted to preserve the ancient Keetoowah
culture, language and religion in pure form as possible, others preferred to
amalgamate the old ways with aspects of non-Indian culture, including
christianity. (The Cherokee Tobacco 78 U. S. 616 case was decided in 1871.)
The Keetoowahs elected Dennis Bushyhead as Principal Chief in 1879 and 1883.
One political party called itself the Keetoowah Party in 1879 in order to win
fullblood votes. The Society lost controlling influence in tribal politics
with the increase of intermarriage and the increasing influence of mixed-
bloods.

In 1887, the General Allotment Act (Dawes Severalty Act) authorized the
allotment of tribal lands to individual Indians and families. The Act did not
apply to Cherokee Nation (24 Stat. 338, Sec. 339, 1887). The land of Cherokee
Nation had to be allotted through an agreement in 1901, following actions of
the U. S. to limit the sovereignty of Cherokee Nation. The 1889 Act
established Federal courts in Indian territory, conferring limited civil
jurisdiction on tribes, and criminal jurisdiction over certain crimes,
excluding only Indian vs. Indian matters from Federal jurisdiction. The Act
terminated certain of Cherokee Nation's governmental powers over prescribed
territories and over its citizens. In 1889, reacting to the threat of
allotment, the political mission of the Society altered when a convention
amended the 1859 Constitution to include both religious and sectarian
functions, and to allow open meetings. All claimed to worship the same God,
as Keetoowahs.

1890s to 1901, PREPARATIONS FOR STATEHOOD; THE CHEROKEE AGREEMENT, AND
THE DISSOLUTION OF INDIAN TERRITORY AND CHEROKEE NATION, AND ALLOTMENT:

Congressional investigations from the 1870s forward confirmed widespread
corruption in the Indian Service and the Five Tribes governments. Proponents
of Oklahoma statehood pressed for elimination of the original tribal
governments in the 1880s, seeking control of land, oil, and minerals. The
1893 Act created the Five Tribes Commission to negotiate with the Five Tribes
for extinguishment of tribal title in order to facilitate the creation of a
state of Oklahoma in Indian Territory, and starting the allotment process.
Proponents of an Indian State of Sequoyah lost. The 1895 Act extended
Arkansas criminal laws over Indian territory, leaving intact exclusive tribal
jurisdiction over tribal members. The 1897 Act conferred civil and criminal
jurisdiction on the United States courts in the territory over all persons
regardless of race, in addition to imposing the laws of Arkansas and the
United States throughout Indian territory. The Five Tribes Commission
concluded negotiations without the cooperation of the Five Tribes, making the
Curtis Act of 1898 inevitable.

The Curtis Act (1898) forced the Five Tribes to allot their lands. This
Act seriously and deliberately weakened the Five Tribes' governments. The Act
granted territorial towns the right to establish municipal governments under
the laws of Arkansas, rendered the civil laws of the tribes unenforceable in
Federal courts, and abolished tribal courts. The Act prohibited payments by
the United States to tribal officers for disbursement to tribal members. The
Creek, Choctaw and Chickasaw tribes benefitted from the incorporation of
provisions of tentative agreements with these tribes, providing that if the
several agreements were ratified by these tribes, the provisions of the
respective agreements would replace conflicting provisions of the Curtis Act.
The Cherokee Nation had refused to negotiate a tentative agreement, and took
the full body blow of the Curtis Act.

Though all Keetoowahs opposed allotment originally, the Keetoowahs split
over how to handle the issue after Cherokee Nation's 31 January 1899 election
on the Cherokee Agreement. The mixed-bloods of Cherokee Nation won in the
popular election to approve the agreement, and Congress ratified the it on 1
March 1901 (31 Stat. 848). The agreement provided that Section 13 of the
Curtis Act would not apply to Cherokee lands, and that "no Act of Congress or
treaty provisions inconsistent with this agreement shall be in force in said
nation" except Sections 14, 27 and 28 of the Curtis Act. These authorized the
incorporation of towns, the location of Indian inspectors in Indian
Territory, and abolished tribal courts. The Agreement did the following:

1) Prescribed the manner of the allotment of all Cherokee land;
2) Prescribed the manner of establishing town sites under the
supervision of the Secretary of the Interior, including sale of town
lots;
3) Established schools;
4) Continued the Cherokee Advocate newspaper;
5) Reserved land for town sites, churches, cemeteries and the like;
6) In Section 58, provided that "The tribal government of the Cherokee
Nation shall not continue longer than March 4, 1906, subject to such
future legislation as Congress may deem proper;"
7) Conferred U. S. citizenship upon Cherokees;
8) In Section 72, provided that "Nothing contained in this agreement,
however, shall be construed to revive or re-establish the Cherokee
courts abolished by said last-mentioned Act of Congress (Curtis Act), or
the authority of any officer, at any time, in any manner connected with
said courts;"
9) in Section 75, provided that "No act, ordinance, or resolution of
the Cherokee national council in any manner affecting the lands of the
tribe, or of individuals after allotment, or the moneys or other
property of the tribe, or of the citizens thereof, except appropriations
for the necessary incidental and salaried expenses of the Cherokee
government as herein limited, shall be of any validity until approved by
the President of the United States."

This Agreement effectively placed the Cherokee Nation under the direct
management of the United States.

In November 1899, the Keetoowah Society convened in Tahlequah to pass
resolutions critical of the Cherokee Council and the Dawes Commission,
particularly with regard to plans to dispose of Cherokee land and to create
a roll without the consent of the Cherokee Nation. They challenged amendments
to the Constitution, and resolved to enroll only under protest. The
Keetoowahs in convention at Big Tucker Springs on 6 September 1901 decided to
enroll with the Dawes Commission led to a final schism between Keetoowah
factions. Redbird Smith left the meeting with eleven of his traditionalist
supporters to resist enrollment actively, forming the Nighthawk Keetoowahs.

Several hundred Keetoowah Indians, including several groups that started
out as members of the Keetoowah Society and left with the Nighthawks in 1901,
coalesced to form a number of secretive, traditionalist, exclusive factions.
Most of these groups started near Gore, Vian, or Proctor, and adjoining
areas. These groups were nascent within the Keetoowah Society as early as
1893, and derived from Goingsnake fire or various of the Four Mothers Nation
fires. Like the Nighthawks, these groups generally refused until 1910 or
later to accept the work of the Dawes Commission.

While they fully intended to maintain tribal government and functions
regardless of the fate of the Cherokee Nation, the Keetoowahs as a body
officially acquiesced under protest to the effect of all the legislative
provisions that would dissolve Cherokee Nation's government and allot
Cherokee lands. They learned that they could not prevent the 1893 Act, the
Dawes Commission enrollment, U. S. citizenship, the Curtis Act and the
abolition of tribal courts, the Agreement with the Cherokee Nation of April
1, 1900, the 1906 Act and the virtual political dissolution of the corrupt
Cherokee government as of 4 March 1906, presidential approval for all tribal
ordinances affecting tribal or individual lands after allotment, and the
allotment in severalty of Cherokee lands. See Cherokee Nation v. Southern
Kansas R. R. 135 U. S. 641 (1890) and Cherokee Nation v. Journeycake, 155 U.
S. 196 (1894).

1901 TO 1906, THE FIVE TRIBES ACT, AND THE REORGANIZATION OF THE
KEETOOWAH SOCIETY, INC., THE CREATION OF THE NIGHTHAWK KEETOOWAHS,
AND OTHER FACTIONS:

During this period, the Keetoowah Indians lived throughout most of
the old Cherokee districts, with the smallest constituencies in Cooweescoowee
and Canadian Districts. The majority of the Keetoowah Indians later formed
the political entity known as the Keetoowah Society, Inc., on 20 September
1905, because they knew that the Cherokee Nation was about to dissolve for
political and practical purposes, leaving Cherokee Nation with no other
general representative government unless the Keetoowahs carried on as a
political body. The Keetoowah Indians believed they had to resort to their
earlier governmental forms. Using a Federal Corporate Charter (20 September
1905) from the Territorial District Court in Tahlequah, as the Keetoowah
Society, Inc., this faction functioned as a polity composed of a Chief and
Council for the express purpose of carrying on the political and social
functions of a Band. Because opposing factions like Redbird Smith's
Nighthawks opposed any political organization they could not dominate, the
Keetoowah Society, Inc., could not fully represent the interests of the
Keetoowah Indians until they resolved such differences. Such a reconciliation
was impossible until the Nighthawks resolved to be a religious and social
organization with no political interests.

Robert Owen, head of the Union Agency of the Five Civilized Tribes, one
of Oklahoma's first U. S. senators and a Cherokee descendant, presented a
memorial for the Keetoowah Society, Inc., at the Sequoyah Convention in 1905.
He worked with attorney Frank Boudinot, the Keetoowahs' legal counsel after
1896 and Secretary after 1901, to prosecuted claims against the U. S. in
behalf of the Keetoowahs. The Keetoowah Society, Inc., elected Frank Boudinot
Chief of the Tribe in 1905, but with no legal effect on Cherokee Nation
except within the Keetoowah Society, Inc. Like the Nighthawk Keetoowahs and
other Keetoowah factions, the Keetoowah Society, Inc., granted membership to
some who were less than fullblood but who were socially and politically
fullblood.

1906-1934, THE GROWTH OF THE KEETOOWAH GOVERNMENTAL
ORGANIZATION PRIOR TO IRA: (The Indian Reorganization Act)

The Five Tribes Act of 1906 provided for final disposition of the
property and legal affairs of the Five Tribes, with special emphasis on the
allotment process, and the establishment of municipalities in Indian
Territory, clearing the way for statehood. The Act adopted language from
various of the agreements with the Five Tribes, and drastically limited the
sovereignty of Cherokee Nation:
Section 11 [Tribal Taxes Abolished] . . . Provided, That all taxes
accruing under tribal laws or regulations of the Secretary of the
Interior shall be abolished from and after December thirty-first,
nineteen hundred and five, but this provision shall not prevent the
collection after that date nor after dissolution of the tribal
government of all such taxes due up to and including December thirty-
first, nineteen hundred and five, and all such taxes levied and
collected after the thirty-first day of December, nineteen hundred and
five, shall be refunded.
Section 28 [Tribal Government Preserved to the Extent Not Terminated] .
. . Provided, That the Tribal existence and present tribal governments
of the Choctaw, Chickasaw, Cherokee, Creek and Seminole tribes or
nations are continued in full force and effect for all purposes
authorized by law, until otherwise provided by law. . . . but the tribal
council or legislature in any of said tribes or nations shall not be in
session for a longer period than thirty days in any one year; Provided,
That no act, ordinance, or resolution (except resolutions of
adjournment) of the tribal council or legislature of any of said tribes
or nations shall be of any validity until approved by the President of
the United States; Provided further, That no contract involving the
payment of expenditure of any money or affecting any property belonging
to any of said tribes or nations made by them or any of them or by any
officer thereof, shall be of any validity until approved by the
President of the United States.
The Cherokee Nation still had a special trust relationship with the Federal
government, and had not been terminated in the sense that tribes were during
the 1950s. Congress expressly extended the existence of the Cherokee Nation,
and intended that members could elect to continue its functions, or abandon
tribal relations as they saw fit. The Cherokee Tribe retained on paper the
basic powers necessary to carry on self-government, including the right to
choose a form of government and select representatives, and to disburse
assets.
However, Cherokee Nation's members did not choose to carry out these
functions, and abandoned virtually all the governmental activities the Act
allowed them to preserve. The presidentially-appointed Principal Chief
constituted the sole Cherokee government. By the 1930s, the Department found
no extant functional Cherokee Nation government, but only a shell, consisting
of the presidentially-appointed Principal Chief, whose main function was to
sign papers disposing of Cherokee assets. Also, after all the legislation of
the 1890s to 1907, congressional limitations on Cherokee Nation's sovereignty
far outweighed the retained attributes.
After 1907, the Nighthawk Keetoowah Society, in true sectarian spirit,
named itself the "Original Keetoowah Society," based on the prophetic
insights of several of the leaders. John Smith, son of Redbird Smith, and
would-be prophet, continued to issue prophetic utterances in this vein
throughout his life, long after the Nighthawks had adopted an official stance
that they were not a political organization:
This is the original Kee-Too-Wah Society. . . . Any other organization
or body functioning or claiming representation under the name of the
Kee-Too-Wah Society are fictitious and impostors. (26 May 1937)
John Smith, the most influential Nighthawk leader among Redbird Smith's sons,
had lost virtually all credibility among Keetoowahs by the 1930s due to his
disastrous support of the Oneida con artist Chester Polk Cornelius. Cornelius
nearly destroyed the Nighthawk organization with failed get-rich-quick
development schemes that left many members landless and destitute. Some
Nighthawk spokesmen and leaders now erroneously claim the UKB is a splinter
of their religious cult, though the Nighthawks officially withdrew from all
political activity after 1901, and barred its members from affiliating with
any other groups or entities, including christian churches. As the number of
tribal towns associated with the Nighthawks dwindled from 21 in about 1900 to
3 in 1937, the remnants of the "non-political" Nighthawk faction eventually
collapsed into a variety of factions. These included two ceremonial grounds
run by opposing factions of Redbird Smith's own family at Redbird's and at
Stokes Smith's grounds, as well as the Goingsnake "Seven Clans" fire, the
Medicine Springs Fire or Medicine Society, and the Four Mothers Nation.

Other Cherokee political factions arose among the Keetoowahs, partly due
to concerns about potential claims, partly to organize formally as a
federally-recognized Tribe: the Cherokee Immigrant Indians, and the Eastern
and Western Emigrants. These factions of Oklahoma Keetoowah
Cherokees by blood pulled together a coalition from the
northern 14 counties of Oklahoma between 1920 and 1924, electing a Chief
(Levi Gritts), and an Executive Council of Cherokees by Blood out of the body
of the Keetoowah Society, Inc. During the 1930s, the majority of Keetoowah
factions, now without any support of the dwindling Nighthawk separatists,
supported the idea of reorganizing all the Keetoowah Cherokees in all the old
clan districts as a united Band under the proposed Indian Reorganization Act.
The Cherokees by Blood, representing all Cherokee descendants rather than
Keetoowahs alone, failed in 1932 to obtain standing as a party to the
Cherokee claims litigation. However, the Keetoowahs persisted as a political
body apart from the Cherokees by blood.

1934-1937, THE IRA: The Land Division in the Department of the Interior
concluded in 1934 that, unlike the other Five Tribes, Cherokee Nation was
neither interested in reorganizing, nor capable of doing so. Unlike the other
Five Tribes, Cherokee Nation had stopped electing officers and holding
meetings. Most members simply had abandoned tribal relations after 1906, and
by the Great Depression, were leaving Oklahoma by the thousands. Only the
Keetoowah Indians were willing and probably able to reorganize in Oklahoma
with great success, if the factions would only pull together. CNO could only
reorganize under OIWA and IRA today through an election relying almost
entirely on absentee ballots.

At the Muskogee hearing concerning the draft Indian Reorganization Act
on 22 March 1934, Keetoowahs shouted down their opponents and presented John
Collier and his staff with a formal petition and letter supporting the IRA,
and orchestrated a motion from the assembly roundly endorsing the
legislation. Shortly thereafter, the Commissioner received a telegram,
opposing reorganization. Though supposedly wired from the Keetoowah Council,
upon investigating, the Commissioner learned the message was a forgery.
Collier publicly praised the Keetoowahs for their enthusiasm and
understanding for reorganization in a variety of writings and press releases.
Interior Associate Solicitor Felix Cohen monitored the Keetoowahs' efforts to
reorganize. Keetoowah leaders offered plans for reorganization, along with
lists of members who supported IRA. Neither the Cherokee Principal Chiefs nor
any general representative body of Cherokee Nation itself showed any support,
while various non-Keetoowah Cherokees wrote to the Commissioner denouncing
the plan. A. M. Landman, Five Civilized Tribes Superintendent, predicted that
the mixed-bloods would control any pan-tribal Cherokee organization. Landman
believed that a fullblood organization was best suited to represent the
fullbloods. However, each faction demanded recognition as the exclusive
representative government of the Tribe.

1937-1939, OIWA AND EARLY ATTEMPTS TO A REORGANIZE KEETOOWAH
GOVERNMENTWITHIN CHEROKEE NATION'S FORMER BOUNDARIES:

Oklahoma Senator Elmer Thomas, who believed the IRA should be
restricted to reservation Indians, co-authored
the Oklahoma Indian Welfare Act to allow Indians living on allotted lands in
the state to avail themselves of the benefits of IRA. Though the
participation of Oklahoma Indians in the IRA was not possible until the
Thomas-Rogers Act of 1936 enabled reorganization under IRA through the OIWA,
the Keetoowahs began planning to organize under the legislation. Just as A.
M. Landman had predicted, the Keetoowah Society, Inc., at the urging of Levi
Gritts, sought permission to represent the Keetoowah Indians, while certain
other factions still demanded recognition as the exclusive representative
government of their own small following, if not of the Tribe.

BIA anthropologist Dr. Charles Wisdom conducted research on the
Keetoowah Indians starting 5 May 1937 with the cooperation of Organization
Field Agent Ben Dwight. Wisdom did not realize the Keetoowahs had a Federal
Charter predating to the dissolution of Cherokee Nation, showing the
Keetoowahs' intent to maintain a governing entity within Cherokee Nation
despite the effect of other Federal legislation. While the Nighthawk
Keetoowahs were willing to submit to an interview, the Nighthawk leaders
later utterly rejected the idea of participating in organization, primarily
because they were not to be the focus of the project. Levi Gritts's effort
failed when Associate Solicitor Frederick Kirgis issued his Keetoowah-
Organization as a Band Opinion (29 July 1937), based on Charles Wisdom's
brief ethnographic study, concluding that the Society, or any of its
factions, standing alone, was only a society of the Keetoowah Indians, and
never had been a governing polity within the Cherokee Nation.

A Land Division decision in October 1937 stated that the Cherokee Nation
government under the 6 September 1839 Constitution was ineligible to
reorganize to undertake the functions of the 1906 government. Congress had
dissolved most aspects of the inherent sovereignty of the Cherokee Nation
government as set out in the 6 September 1839 Constitution. [(MEMO TO INDIAN
ORGANIZATION, 25 October 1937, from Director of Lands (WDW) to Daiker, Indian
Organization (163618); see also Solicitor's Opinion, 1 October 1941, 1 Op.
Sol. on Indian Affairs 1076 (U. S. D. I. 1979)] The decision binds CNO,
despite the Harjo v. Kleppe court's finding that the Five Tribes still
existed in 1972, and that the citizens of those tribes had the right to
organize governments under OIWA and IRA. Thus, while the Cherokee Nation was
not terminated, any new organization of the Cherokee Tribe would have to be
an entirely new entity. Field investigators reaffirmed that Cherokee citizens
forming the general class of Dawes enrollees, with the exception of the
Keetoowahs, had abandoned tribal relations and had no interest in
reorganization.

1939-1946, THE UNION OF KEETOOWAH FACTIONS TO FORM THE UKB: Contrary to
post-1979 accounts by CNO, the UKB Base Roll was the BIA-approved 1949 UKB
Base Roll, not the 1907 Cherokee Dawes Commission Roll. Neither Principal
Chief Jesse B. Milam nor W. W. Keeler had any role except as bystanders in
the UKB reorganization. The UKB was never intended to be a mere loan
association. The UKB was federally-chartered under Section 3 (not Section 4)
of the OIWA. The UKB never identified itself with the Nighthawk cult, because
most UKB members belonged to Protestant denominations.

In June 1939, Organization Field Agent Ben Dwight informed Regional
Coordinator of Organization for the Five Civilized Tribes Agency, Muskogee,
A. C. Monahan, that Kirgis had been unaware of the Keetoowah Society, Inc.'s
Federal Corporate Charter (20 September 1905). In obtaining that Charter, the
Keetoowah Indians had established recognition as a polity of Indians. That
recognition should have made them eligible to reorganize under OIWA and IRA.
Realizing the legal effect of that document, A. C. Monahan assigned Ben
Dwight and A. A. Exendine to help the Band to organize a coalition government
between 1939 and 1946 including the Society, Inc. and other factions as well.

The United Keetoowah Cherokee Band of Indians (UKB) formed a
Constitution and By-laws in 1939, and held popular elections between 1939 and
1946, seating a Chief, Reverend John Hitcher (1939-1946), and a Council. The
UKB undertook land acquisition efforts for the purpose of establishing a
Federal trust land base in Oklahoma in 1942, but the Department would not
cooperate without congressional approval. Some Five Civilized Tribes Agency
employees hoped to use the Band as a vehicle for restoring the Old Cherokee
Nation, or at least for reorganizing all the Cherokee Dawes Commission
enrollees and their descendants under OIWA and IRA. However, the 25 October
1937 decision of the Director of Lands, Land Division, Department of the
Interior, prevented that result. The UKB decided by 1942 to remain a
"Keetoowah" Cherokee polity including only Cherokee descendants who met the
UKB membership requirements. The Department determined that an organization
of the Keetoowahs, reuniting the various Keetoowah factions and other
Cherokees of one-half blood or more who wanted to participate, did not
conflict with the residual government of the Cherokee Nation. The latter was
to retain its 1906 status under an appointed Principal Chief.

D'Arcy McNickle's determination of 24 April 1944 found the UKB was a
historical tribe (see full text below). Rather than merely ask the Solicitor
to rewrite the opinion, Acting Interior Secretary Abe Fortas asked Congress
to pass the 10 August 1946 Act acknowledging the UKB's historical status and
eligibility to reorganize under OIWA and IRA. The legislative history and
intent contemplated recognition of a united body of Keetoowah Indians of 1/4
degree Indian blood or more, with the possibility of enrolling persons of
lesser degree in the future. Keetoowah Indians of all factions and
communities worked with the Organization Field Agents through Five Tribes
Agency after 1946 to reunite under a common secular leadership, although
every UKB Chief from 1939 to 1979 was a protestant clergyman. UKB interest in
Cherokee-related issues was entirely restricted to interests of the UKB
constituency, composed primarily of restricted Indians, non-Dawes enrollees,
and other Keetoowahs who remained loyal to the Keetoowah political ideals.

1946-1950, THE KEETOOWAH INDIANS ACT AND THE UKB REORGANIZATION:
Reverend Jim Pickup (1946-1954, 1956-1957, 1960-1967) succeeded Reverend John
Hitcher (1939-1946) at the latter's death in 1946, continuing as Provisional
Chief until reorganization was complete. Pickup continued as Chief,
alternating with Jeff Tindle, until 1967. Due to the Kirgis Keetoowah -
Organization as a Band Opinion (29 July 1937), the UKB reorganization process
could not begin until Congress agreed to offer the UKB the opportunity to
reorganize under OIWA and IRA. The Organization Field Agents, congressional
staff, and Acting Interior Secretary Abe Fortas, Congressman Stigler and
Senator Thomas supported the proposed UKB reorganization, based on the
results of additional research and the success of organizing efforts.
Congress passed the Keetoowah Act on 10 August 1946, as part of a package
measure including a gift of land to the Cheyenne-Arapaho Tribe in Oklahoma.

Although in the 1930s the plan was to organize half-bloods only, the
1946 Act did not contemplate the organization of an adult Indian community
under Section 479 of the IRA, but of a sovereign tribe in the full sense
under Section 476 of the IRA. Therefore, the 1949 UKB Base Roll was open to
quarter-bloods, anticipating the future adoption of other Cherokee
descendants of lesser blood. The reorganization process took another four
years. On 1 May 1949, anticipating the roll the UKB would have in managing
their share of Cherokee Nation property, the BIA named Chief Jim Pickup as
Trustee for Cherokee Nation assets. On 9 May 1950, Secretary Warne signed the
approved UKB Charter, and issued a statement that the UKB treaty rights could
be found in the treaties of the Cherokee Nation. The UKB corporate Charter,
Constitution and By-laws were adopted 3 October 1950 by the majority of
qualified voters. Thereafter, the UKB, incorporating all the factions of the
Keetoowah Indians of the Cherokee Tribe throughout the nine districts of the
old Cherokee Reservation, continued to repose its secular governmental
authority continuously in democratically-elected Chiefs (also informally
called, in the 1940s, "Presidents"), Executive Officers, and a Tribal
Council, with other subordinate officers and officials as needed.

The 1939 Roll, reaffirmed in 1949, became the foundation of the Base
Roll, subject to amendment by 3 October 1955, though the UKB updated it in
1985 with secretarial approval. During the periods of open enrollment,
consistent with the 1950 enrollment laws, members of 1/4 or more Cherokee
ancestry, using the Dawes Roll or any other acceptable proof of Cherokee
ancestry by blood, were adopted into the Band. Enrollment remained open,
though enrollment ordinances changed several times.

1950-1964, THE UKB DURING TERMINATION: Despite undocumented and
spurious claims to the contrary, archival sources demonstrate that the Band
continued to survive and function as a tribal entity since reorganization,
although not without heated election controversies and partisan feuds, such
as those between the Jeff Tindle (1954-1956, 1957-1960) and Jim Pickup (1956-
1957, 1960-1967).

With the aid of Earl Boyd Pierce, Esq., the UKB resumed efforts to
borrow money in order to acquire a tribal trust land base, through the
OIWA/IRA revolving credit. In refusing to extend loans to the UKB, the BIA
relied on the point that the UKB was not organized under Section 4 of the
OIWA as a loan association, but was a recognized tribe organized under
Section 3. When the policy was changed making the Section 3 organizations
eligible to apply, another general policy of BIA Superintendent W. O. Roberts
and the Eisenhower Administration prevented loans for such trust land
acquisition. When UKB Chief Jeff Tindle attempt to have Principal Chief W. W.
Keeler replaced, Muskogee Area Director Fickinger seized on the occurrence of
a UKB election dispute to declare the UKB without a government. When the Band
appealed, the BIA Commissioner Glenn Emmons admonished Fickinger on his
refusal to recognize UKB's Council.

Between 3 October 1950 and 3 October 1960, while the Secretary retained
approval authority over the UKB, but the Department determined that such
authority lapsed on 3 October 1960 (see Letter, 15 October 1961, from
Assistant Chief Tribal Operations Officer Pennington to Muskogee Area
Director Virgil N. Harrington, regarding Harrington's 7 August 1961 inquiry
as to the effect of Sections 5, 6 of the UKB's Charter on secretarial
approval authority after 3 October 1960). Principal Chief W. W. Keeler never
obtained supervisorial authority over the UKB, except covertly, by arranging
with Area Director Harrington and the UKB's attorney to receive all
information regarding their private undertakings so that he could veto them
if they did not suit him.

After Chief Pickup resumed office, replacing Chief Jeff Tindle, the BIA
began to work with the UKB to make the Band the vehicle for delivering
services to its own members and to other service-eligible Cherokees. In 1963,
the BIA and Cherokee Nation realized that because of restrictions in the
Band's Charter that could not be lifted without a secretarial election, the
UKB was unable to engage in land transactions that involved long-term leases
or sale of acquired tribal lands. The UKB continued to seek trust land
acquisition for tribal housing and its own governmental offices and business,
with no cooperation from the BIA.

Members of the UKB Tribal Council continued to administer enrollment and
to verificy qualifications of prospective members, approving enrollment
updates through formal Council action. A 4 June 1963 enrollment ordinances
required new members to prove 1/2 or more degree of Cherokee Indian blood,
but the 23 November 1964 enrollment ordinance restored eligibility to quarter
bloods. All enrollment ordinances continued to rely upon the 1949 UKB roll.

1964-1976, THE UKB DURING RECONSTRUCTION OF CHEROKEE NATION:
Cherokee Nation or Tribe and the UKB embarked on joint enterprises in the
early 1960s. The UKB Council and Chief Pickup tried to help all Cherokees,
regardless of UKB affiliation, by acting as the Cherokees' sponsoring
federally-acknowledged tribal organization for the purpose of bringing in
funds and programs to Oklahoma. Chief Jim Pickup, as Trustee for the trust
assets of Cherokee Nation (4 May 1949 - 17 May 1967), wanted the UKB
Council's joint and concurrent control over Cherokee trust assets, programs
and services within the boundaries of the old Cherokee Nation to continue,
for the benefit of the UKB's own members.

UKB Chief Jim Pickup and UKB Chief Bill Glory (1967-1979) attempted to
work cooperatively with Cherokee Nation, even though UKB members bitterly
criticized both of them for being too accomodating and giving away the rights
of the UKB. Some leading members of the UKB Council even resigned in protest.
Relations deteriorated irreparably between Chief Glory and Principal Chief W.
W. Keeler by 1974. Keeler evicted Glory from the small UKB tribal office
housed in the CNO tribal complex at Tahlequah after Glory retired from the
Cherokee Nation Housing Authority. Cherokee Nation attempted thereafter to
close all doors to UKB participation in Cherokee property and activities.

The Act of Oct. 22, 1970, 91st Cong., 2nd Sess., P. L. 91-495, 84 Stat.
1091 (1970), the Bellmon Bill, "Authoriz[ed] Each of the Five Civilized
Tribes of Oklahoma to Select Their Principal Officer . . . ." However,
Commissioner Louis Bruce, in American Indian Tribes and their Federal
Relationship, Plus a Partial Listing of other United States Indian Groups
(Wash., D. C.: U.S. Dept. of Interior, BIA, March, 1972) declared that the
UKB is a fully recognized Class 1 OIWA/IRA tribal entity, while Cherokee
Nation remained an unorganized Class 3 service population. Federal court
challenges later determined that the presidentially - or secretarially -
appointed Principal Chiefs of Cherokee Nation since 1906 were bona fide heads
of state, but those decisions had no legal effect on the status of the UKB.

1976-1990, THE UKB DURING CHEROKEE NATION OF OKLAHOMA'S SELF-
DETERMINATION: CNO opposed the UKB's continuing efforts to establish a land
base, tribal office complex, businesses, and to maintain a separate roll. CNO
began exploring ways to terminate the Band, including through administrative
and congressional action. The course of choice was to request nullification
of the UKB Corporate Charter as provided in Section 8 of that Charter.

CNO adopted a non-OIWA/IRA government under a 5 July 1976 Constitution
that Commissioner Morris Thompson and Ross O. Swimmer co-approved 2 October
1975. CNO claimed this document to be the legal equivalent of an OIWA
Charter, Constitution and By-laws. CNO claimed that the UKB and CNO shared a
common base roll and service population, and that CNO should control all
funding and trust assets within the former boundaries of Cherokee Nation.
Litigation addressed question whether the Cherokee government was terminated
in 1906. The BIA supported CNO's claim that the OIWA and IRA abolished the
effect of the 1906 Act in that the Tribe was eligible for the benefits of
OIWA and IRA; however, no one has explained how any Tribe can avail itself of
the full benefits of OIWA and IRA without reorganizing accordingly. Congress,
having limited the inherent sovereignty of Cherokee Nation, began to restore
it through piecemeal legislation in the 1980s. The BIA also gave CNO special
dispensations that went around the intent of OIWA and IRA. UKB's organization
under OIWA / IRA became a liability, when Swimmer slurred the OIWA, IRA and
1946 Act, claiming the UKB was a "created" tribe lacking any sovereignty.

UKB political and governmental activities and economic development
efforts were muddled during the early to mid-1970s, dissolving into factional
disputes between Chief Bill Glory and the Tribal Council. The feud led to the
development of a Shadow or Underground government under the leadership of Tom
Hicks, Henry Doublehead and Willie Jumper. Eventually, Jim Gordon (1979-1983)
was elected as the new Chief to succeed Glory after Tom Hicks withdrew. UKB's
Council, gridlocked during the mid-seventies, returned to an even keel when
the Council sought aid from Muskogee Agency to restore order and clear the
wreckage left after Chief Glory's chaotic administration.

The years of Chief Jim Gordon's administration (1979-1983) were fraught
with controversy and a taste of the unrelenting harassment of CNO to come.
Under Chief Gordon, the Enrollment Committee expanded enrollment activities,
under a series of new ordinances. For a time, eligibility expanded, though
few outside the original eligibility classes availed themselves of the
opportunity. New additions to the Roll occurred through Council resolutions
in 1980, and in another series of additions, concluding in October 1982.

During these years, the UKB attempted to participate in various programs and
development strategies with mixed success, due to lack of resources, lack of
cooperation from the BIA and the State, direct interference from CNO, and the
UKB's own internal political confusion and distress.

In the Federal Register, Vol. 44, No. 26, Tuesday February 6, 1979, pp.
7235-7236, the Secretary of the Interior lists the UKB as a federally-
recognized, service-eligible entity. The Department has since characterized
this and similar publications as binding determinations of the Department
regarding the recognition of tribes, both in Federal litigation and in
congressional hearings.

Principal Chief of Cherokee Nation Ross O. Swimmer denied UKB's
historical existence for the first time of record to Oklahoma Senator Henry
Bellmon, in a Letter, 27 April 1979. Swimmer claimed the UKB was "created" by
the accidental inclusion of their name in the 6 February 1979 Federal
Register notice; see also Letter, 30 April 1979, Principal Chief of Cherokee
Nation Ross O. Swimmer to Oklahoma Senator David Boren, denying UKB's
historical existence. The claims that the UKB is a sovereign inferior to CNO,
that the UKB has no rights as a Federal-Indian tribe, regardless of source or
basis, do not antedate 6 February 1979, and probably are no earlier than 27
April 1979.

In May 1979, Assistant Deputy Commissioner Martin Seneca issued a
decision requiring the UKB and CNO to issue concurring resolutions to obtain
P. L. 93-638 "tribal organization" funding. CNO Principal Chief Ross O.
Swimmer lobbied successfully with Assistant Secretary Forrest Gerard to
overturn the Seneca determination. However, in characterizing the
organization of federally-acknowledged tribes listed in the 6 February 1979
Federal Register notice, on 20 November 1979, Ms. Patricia Simmons, Tribal
Relations Specialist, submitted to the Chief, Branch of Tribal Relations, a
detailed report titled, "Organizational Status of Federally Recognized Indian
Entities." Simmons surveyed a category (p. 2) of "Officially Approved
Organizations Pursuant to Statutory Authority (Indian Reorganization Act:
Oklahoma Indian Welfare Act; and Alaska Native Act), finding (p. 3), UKB had
a Council organized under a Federal Corporate Charter. In the "Other"
category of "Officially Approved Organizations Outside of Specific Statutory
Authority," (p.7), Cherokee Nation (with a Council) was listed.

On 16 January 1980, Gerard eliminated requirements that CNO obtain
concurring resolutions from the UKB to apply for any Federal program funds
serving Cherokees. CNO continued to claim that the UKB and CNO have a common
population, though very few CNO members ever were eligible for membership in
the UKB. The Band obtained a P. L. 93-638 Grant to amend the 1949 Base Roll
and produce a current (1986) Roll. In the first month of the project, the BIA
reaffirmed that the UKB Base Roll was distinct from the 1907 Cherokee Dawes
Commission Roll, and therefore was a Base Roll distinct from CNO's.

In 1988, the Department found that the 1976 Cherokee Nation was, as
constituted, "the full successor to the Cherokee Nation of the first decade
of this century."(Letter, 4 February 1988, Hazel E. Elbert, Acting Assistant
Secretary of Interior for Indian Affairs, to James G. Wilcoxen, Esq.,
Wilcoxen and Cate, Muskogee, Oklahoma) However, unexplained questions
regarding the Tribe's inherent sovereignty, precisely because it is the full
successor to the Cherokee Nation as dissolved in part and preserved in part
in 1906. The Department did not find that CNO had any authority over the UKB,
a tribe organized separately under OIWA and IRA. Elbert did find that the 25
October 1937 Land Division Opinion remained in effect.

UKB Membership Ordinance 90 UKB 9-16 16 September 1990 provides that any
descendant of 1/4 Cherokee Indian blood of any enrollee on the 1949 UKB Base
Roll, or on any other historical Cherokee Roll, shall be eligible for
enrollment in the UKB. Final determinations of Cherokee Indian blood quantum
rest with the UKB Tribal Council. Under that ordinance, UKB members who held
affiliation of any kind with any other federally-acknowledged tribe were
required to relinquish that membership. The UKB continues to require
relinquishment for new applicants, but is setting up the process for an IRA
election to change enrollment requirements to require relinquishment and to
ban dual affiliation.

This is to certify that records created in 1985 show that the United
Keetoowah Band of Cherokee Indians in Oklahoma has approximately 4,700
enrolled members residing within their service area.

Over 250 more UKB members have relinquished their affiliation with any other
federally-recognized tribe since that date. The 1986 United Keetoowah Band
Roll, completed during the P. L. 93-638 grant, was known to be an official
Tribal Roll for all purposes, duly adopted by the Tribal Council, and
authenticated by the BIA, within the meaning of Federal Indian Law. It is up-
to-date, and there are regular monthly additions through adoption, and
clarifications of exclusive affiliation through relinquishment from Cherokee
Nation of Oklahoma.

Regardless of Dawes descendency, it is the policy of the United
Keetoowah Band of Cherokee Indians in Oklahoma that all lineal descendants of
the 1949 Base Roll and current roll are automatically eligible for membership
in the Band. The UKB hoped that the enrollment update and other status
clarification efforts would result in separation of their population from
CNO's, and would lead to the development of a UKB land base and separate
programs. However, a separation of the two populations required the
cooperation of CNO, and that was virtually impossible for the UKB to obtain.
The UKB sought to finance litigation to obtain a clarification of their
political and economic rights, but CNO intervened with all agencies,
foundations, corporations, local governments and Congress to prevent any
successful business ventures.

CONCLUSION: 1990-1993, THE CHEROKEE NATION OF OKLAHOMA'S
CAMPAIGN TO TERMINATE THE UKB:

In 1990, in a desperate effort to prevent the Secretary
from extending to the UKB the full rights of a properly organize OIWA and IRA
tribal government, Ross O. Swimmer wrote a letter to Assistant Secretary
Brown. This letter concluded that the UKB should not be recognized at all,
because the UKB Base Roll was the not BIA-approved 1949 UKB Base Roll, not
the 1907 Cherokee Dawes Commission Roll, because Principal Chief W. W. Keeler
had the UKB reorganized to suit his own purposes, because the UKB was only
intended to be a loan association, and because the UKB, though federally-
chartered under Section 3 of the OIWA, was always trying to ride the
coattails of the Nighthawk Keetoowahs in order to establish a tribal
identity. Swimmer's claims became the core of the case against the UKB
thereafter in litigation and in hearings. The CNO had terminated a tribe by
creating a new mythology.

The premise upon which Assistant Secretary Forrest Gerard relied in
penning the 16 January 1980 Letter barring separate funding for the United
Keetoowah Band was the same one upon which Congress relied in declaring the
United Keetoowah Band ineligible for separate funding and land acquisition in
Oklahoma (at least for the purposes of the 101st Congress) within the former
boundaries of Cherokee Nation (in Amendment 86 to H. R. 101-116, the FY 1992
Interior Budget Appropriations Bill). That defective premise was that
Cherokee Nation of Oklahoma and the United Keetoowah Band share the same Base
Roll.

AN EXECUTIVE SUMMARY OF THE UKB'S STATUS

WITH REVIEW UNDER THE CRITERIA OF 25 C. F. R. 83

"The Keetoowahs themselves have never accepted the view that
they are not "the people' and that they do not speak for the real
interests of the ancient Cherokee world. They continue to this day
to speak and act in all patience as if the decrees of the courts
and the acts of the Congress had never been. But they are still
puzzled at the failure of the United States to understand the
simple thing they have always said, namely that Keetoowah is
Cherokee and should never have been considered anything else."
-- from Position Paper on the UKB, 24 April 1944, D'Arcy McNickle,

THE STATUS OF THE UNITED KEETOOWAH BAND OF
CHEROKEE INDIANS IN OKLAHOMA

The purpose of the following narrative is to lay to rest certain
popular misconceptions about the political identity of the Keetoowah
Indians who compose a recognized Indian tribe. The most damaging of
these misconceptions arose during the concerted, well-financed campaign
by the Cherokee Nation of Oklahoma and the Department of the Interior to
falsify the record of the UKB's existence and organization to accomplish
the Band's termination. That campaign started on or about 27 April 1979.
The UKB hopes that Congress, Indian nations and voters will learn from
this account how the involuntary termination of tribal existence still
is possible.
* * *
After 1968, Congress took steps to halt or reverse the unilateral
administrative and legislative termination of tribes. P.L. 100-297,
Title 25 U. S. C. Section 2502 (April 28, 1988), formally rescinded P.
L. 83-108 as a statement of the "sense of Congress," at least for the
purposes of the 100th Congress. Congress declared that there shall be no
unilateral termination of any federally-recognized tribe. See
legislative history at 1988 U. S. Code Congressional and Administrative
News, p. 101. Termination still happens, through third-party challenges
to the tribal status of tribes that are recognized. Aggressive lobbying,
litigation, and defamation are effective tools for competing governments
and business interests who find any particular tribe's inherent powers
and rightful property claims to be inconvenient. The UKB example
provides an important case study of the continuing termination process.

This narrative begins at what could be the end. The effect of an
obscure amendment to the FY 1992 Interior budget was to declare the Band
ineligible for separate services or Federal trust land acquisition, and
therefore effectively terminated as a sovereign. The legislative history
of Amendment 86 is illustrative of the UKB's interactions with the U. S.
Congress, the BIA, Cherokee Nation of Oklahoma, and the State of
Oklahoma since 1979.

Knowing well that the purpose of a $100,000 line item in the FY 92
Interior budget was to allow the UKB to maintain a current distinct
Tribal Roll, Cherokee Nation of Oklahoma intervened to prevent the
funding allocation. Congressman Mike Synar's testimony against the UKB
during the hearings on FY 1992 Interior appropriations quoted from what
he said was a BIA assessment of the UKB's performance under its 1984 P.
L. 93-638 grant to update the UKB Roll. At the hearing, Chairman Les
Aucoin clearly viewed this quote as the single most important charge
against the UKB. At the appropriations hearing, BIA witnesses verified
that the statement was an authentic quote from a 1980 BIA report.

No one at the hearing, no member of Congress, no staff member ever
read the alleged quote carefully enough to notice the date of the
alleged BIA "determination." No one at the hearing read from or cited
the 1984 grant approval letter from the BIA to the UKB informing the
Band of the award and its terms. No one cited the UKB's 1986 Final
Report or read from the Band's cover letter. No one invited the UKB to
respond, or listened when the UKB learned about the hearing and
attempted to respond to the accusations of Congressman Synar and CNO. No
member of Congress ever has asked whether it was physically impossible
for there to be a 1980 BIA negative assessment of the Band's performance
on a project which did not exist until 1984, and which the Band
completed in 1986. The UKB Tribal Council's Final Report to the BIA on
their 1984 P. L. 93-638 grant accompanied an approved and updated roll.
That roll was verified by the BIA Muskogee Area Office for use as
evidence in Cordelia Tyner, a/k/a/ Cordelia Tyner Washington, and the
United Keetoowah Band of Cherokee Indians v. State of Oklahoma, ex re.,
David Moss, District Attorney and David Moss, individually; M. Denise
Graham, individually, No. 87-2797, U. S. D. C., N. D., Oklahoma (1987),
when the State of Oklahoma demanded that the UKB produce a current
approved Tribal Roll. Contrary to post-1979 accounts by CNO, the UKB
Base Roll was and still is the BIA-approved 1949 UKB Base Roll, not the
1907 Cherokee Dawes Commission Roll. A comparison of the grant letter
and the UKB's Final Report proves that Congressman Synar's 1991
allegations against the UKB were false.

It is impossible to write a valid program evaluation four years
before a project starts and six years before it ends. If the BIA was
prescient enough in 1980 to forsee the UKB would fail to perform on its
1984 grant contract by 1986 and issue a report in 1980 making that
finding, why did the Assistant Secretary grant the award in the first
place? If the new Congress is incapable of rescinding Amendment 86, no
Indian sovereign is safe.
* * *
Another charge against the UKB dating to 1979 is that it is a
splinter group of the Nighthawk Keetoowah religious organization, or
alternatively, that it is a bogus organization wrongfully claiming a
political identity and affiliation with the Nighthawk Keetoowahs. The
UKB never identified itself with the Nighthawk cult. Most original UKB
members belonged to Protestant denominations, and most of the Chiefs
have been fundamentalist preachers or church leaders; that is the plain
truth.
Chadwick Smith, a Cherokee affiliated with Cherokee Nation and
enrolled with the UKB, has been an employee of Cherokee Nation since the
1970s. While he serves as legal counsel for CNO and as a judge in CNO's
magistrate court system, he also represents the Nighthawk Keetoowahs
regarding their false claim that the UKB is a splinter group of the
"Nighthawk" Keetoowah Society, created at some unknown date between 1905
and 27 April 1979 (the date when Ross O. Swimmer's claims against UKB's
status emerged). Chadwick Smith leads a group of "Reformed Keetoowahs"
dedicated to neutralizing UKB political activity, by termination if
possible. Ironically, Chadwick Smith is a grandson of Rachel Quinton, a
faithful UKB Council representive for the Canadian District, as well as
Secretary and Clerk during the 1950s, 1960s and 1970s, who never saw the
UKB as a creature of CNO. Throughout most of her later years, Secretary
Rachel Quinton unsuccessfully promoted reconciliation between Stokes
Smith, the Chief of the Nighthawk contingent in her day, and the UKB
Council, hoping that Stokes Smith's would encourage his followers to
join the UKB. Mr. Smith's personal crusade against the UKB repudiates
his membership in the UKB, and dishonors the memory of his own
grandmother.

Federal records and official accounts attest that the Nighthawk
Keetoowah Society broke away from the old Keetoowah Society about 1905
as a result of a disagreement regarding the political future of the
community. The history of the "Nighthawks" as a secretive religious cult
in the strict anthropological sense is well-established in scholarly
writings. Today, the two main opposing factions of Keetoowah Nighthawks
at Stokes Smiths Grounds and at Redbird Smith's Grounds still claim
(separately, and in opposition to each other and the rest of the world)
to be the arch-conservative bastion of Cherokee tradition. The
Nighthawks generally have barred members from affiliation in any other
political, religious or social organizations. The Nighthawks' "non-
political" religious organizations shunned most christian influences as
a doctrinal matter, though Redbird Smith himself venerated Christ at the
end of his life. Therefore, it is most interesting to find that in 1991,
the Nighthawk Keetoowahs at Stokes Smith's Grounds reversed a policy of
over 80 years' standing to attack the political status of the UKB,
adopting a new agenda that suited Chad Smith's professional aspirations
quite well. Chad Smith, his father and certain cronies have used their
dual affiliation with CNO and the UKB to mount a widely-advertised
campaign to terminate the UKB from within.

The Keetoowah Society, Inc., incorporated on 20 September 1905, and
worked to keep the Keetoowah factions united. The Corporation led the
struggle for the right of the UKB to reorganize, but its long-time
leaders lost credibility and following to the UKB after 1939. By 1950,
most members of the various Keetoowah factions had joined the UKB, even
though the leaders of these factions never officially resolved their
philosophical differences. While the Nighthawk Keetoowahs recorded under
900 current members (and the membership at the two remaining, opposing
grounds has continued gradually to decline), the official UKB enrollment
was around 1,500 in 1939, and grew to over 3,000 by the time of the IRA
election in 1950. The UKB has a resident Oklahoma service population of
4,700, of whom about 4,000 hold exclusive UKB membership. The weak basis
for the "Nighthawk" legend appears below in a detailed chronology and
analysis of events leading to the acknowledgment of the UKB in 1946 as
a federally-recognized tribe entirely distinct from the Nighthawk
organization or from Cherokee Nation.
* * *
On 27 April 1979, Ross O. Swimmer claimed that the UKB was created
as a Section 4 loan association under OIWA, only to enable individual
Cherokees to obtain personal loans. UKB was never intended to be a mere
OIWA loan association. The UKB was federally-chartered under Section 3
(not Section 4) of the OIWA, and never received any OIWA loans, because
the BIA refused to allow them to participate in the program, even after
the rule changes made them eligible, as a Section 3 chartered Tribe.

Ross O. Swimmer later claimed (8 May 1990) that Principal Chief W.
W. Keeler personally arranged the acknowledgent and reorganization of
the UKB after 1950 in order to assure that Cherokee interests would be
represented in Federal claims actions. While Swimmer's 8 May 1990 claim
is false in stating that Keeler had any significant role in the 1946 Act
or the UKB reorganization, it supports the theory that the UKB is
entitled to standing as a party in any claims actions regarding the
trust assets of the old Cherokee Nation. As the records demonstrate,
neither Principal Chief W. W. Keeler, nor his immediate predecessor
Jesse B. Milam, had any role except as bemused bystanders in UKB's
reorganization. We have found no evidence that Keeler knew what a
Keetoowah was until he was appointed to Cherokee Nation Executive
Committee on 30 July 1948, months before he succeeded Milam.

Swimmer's fallback position was that the UKB never properly
reorganized under OIWA and IRA, notwithstanding the 1946 congressional
recognition of the Band's eligibility to reorganize, due to a 1937
Solicitor's Opinion by Frederic L. Kirgis. In Keetoowah -- Organization
as a Band Kirgis determined the Keetoowah Society, Inc., was ineligible
under OIWA and IRA to reorganize as an Indian tribe. Swimmer was silent
regarding the written findings of the Five Civilized Tribes Agency
Organization Field Agents (Ben Dwight and A. A. Exendine) and of their
Regional Coordinator, A. C. Monahan (between June 1939 and 1946).
Swimmer seemed conveniently ignorant of the documented BIA organization
field work with the UKB after 1937, and the legislative history of the
1946 Keetoowah Indians Act. In debunking Swimmer's follies, this
narrative reviews the entire documented history of the UKB's
reorganization under the OIWA and the IRA. The narrative describes the
Band's near eradictation between 1979 and 1992 due to administrative
termination and legislative logrolling. The narrative concludes with a
brief discussion of measures the UKB is undertaking to survive.
* * *
This story of the near-termination of the UKB begins with an
account of the Band's formal congressional recognition. The 1937
Keetoowah Society, Inc., Opinion lost all significance in the
congressional acknowledgment of the UKB. Congress knew all about the
Opinion, and agreed with the policy basis, but disagreed with the fact-
finding and conclusions. The 1937 Kirgis Opinion relied on the
understanding that the various Keetoowah factions that had broken away
since 1900 had never formed a coalition government. He ignored the
significant point that, though the Keetoowah Society, Inc., had lost
much of its right to claim dominion over all Keetoowah Indians due to
factionalism, the Keetoowah Society had obtained a Federal Charter from
a territorial court in Tahlequah on 20 September 1905, recognizing it as
a polity of Indians. The Keetoowah Indians already had been federally-
acknowledged as a political entity, a tribe.

CNO claims that the 1946 Keetoowah Act was somehow an error, but
the legislative history behind the 1946 Keetoowah Act shows the UKB's
recognition was no fluke. In endorsing the bill, Acting Secretary of the
Interior Abe Fortas relied on ten years of BIA organization work,
finding that it was possible for the majority of Keetoowah Cherokees to
unite to form a coalition government by consensus, even if it meant
abandoning their own factions, including the Keetoowah Society, Inc.,
itself. U. S. Congress recognized the United Keetoowah Band of Cherokee
Indians in Oklahoma (UKB) as a Tribe of Indians residing in Oklahoma
under the Act of August 10, 1946 (60 Stat. 976). The Band subsequently
incorporated under Section 3 of the Oklahoma Indian Welfare Act of June
26, 1936 (46 Stat. 1967), the OIWA. The Secretary of the Department of
the Interior approved the Band's election (October 3, 1950) to ratify
the amendments to the UKB Tribal Constitution and Bylaws, and to adopt
a Corporate Charter under the OIWA. The UKB remains an autonomous,
distinct, federally-recognized tribal entity. The UKB has reserved to
itself all the rights and privileges secured to organized tribes under
Section 3 of the Indian Reorganization Act.

CNO also claimed in statements to the BIA (1990 - 1991) that,
regardless of the 1946 Act, the reorganization of the UKB was
fundamentally defective or never completed, and that therefore the Band
should never be recognized. BIA representatives adopted this line in
discussions with Keetoowah representatives visiting in Washington, D.
C., in 1991, claiming that they simply could not locate signed copies of
the UKB Charter, Constitution or By-laws, or proof that the 3 October
1950 Federal election ever had happened. The UKB's findings in Federal
archival holdings in 1990 and 1991 proved not only that these documents
existed, but that BIA staff had made no reasonable effort to look for
them, or simply were lying.

On 27 April 1979, Ross O. Swimmer also claimed that the UKB never
had conducted any governmental or community functions as a Tribe, and
that it had abandoned tribal relations voluntarily at some undefined
time between 1969 and 1979. The inclusion of the UKB's name on the
Interior Secretary's 6 February 1979 Federal Register listing of
federally-recognized tribes, therefore, was a fluke. Swimmer did not
bother to check departmental determinations on the UKB's status during
the 1970s, or request documentation of continuing tribal relations;
Swimmer simply undertook systematic efforts to void the status of the
UKB. In separate letters dated 27 April and 30 April 1979, Swimmer asked
Congress to exercise its authority under Section 8 of the UKB Charter to
nullify the Charter. However, the Department concluded that Congress
also would have to void the UKB Constitution to complete the
transaction, and that spelled TERMINATION. TERMINATION was
not a popular word any more.

Thereafter, Swimmer made the termination of the UKB a personal
crusade. These efforts are a primer for third party challenges of tribal
status throughout the United States. U. S. Secretaries of Interior and
Assistant Secretaries of the Interior for Indian Affairs from Gerard to
Swimmer ignored the congressional mandate respecting the sovereign
rights and entitlements of the UKB. While he was Assistant Secretary
from September 1985 to January 1989, Swimmer used his office to
promulgate a series of negative determinations against the UKB.
Afterwards, Swimmer freely cited decisions of his own administration as
authority in lobbying his successor, Dr. Eddie Frank Brown. Although the
CNO successfully blocked all Federal funding, services, and trust land
acquisition for the Band while Brown was in, the BIA never altered its
basic position, consistent with the 1946 intent of Congress, that the
UKB enjoys a government-to-government relationship with the United
States. See Letter, 10 July 1989 Decision, Acting Superintendent Cecil
Shipp, Tahlequah Agency, BIA, "TO WHOM IT MAY CONCERN," verifying the
"Federal recognition of the United Keetoowah Band of Cherokees of
Oklahoma as a federally recognized tribal entity;" also, Letter, 24 July
1992 Decision, Area Tribal Operations Officer Rosella C. Garbow TO WHOM
IT MAY CONCERN, certifying and authenticating the UKB's Roll; and
Letter, 24 August 1992 Decision, Acting Assistant Secretary Ronald Eden
to Chief John Ross, UKB, confirming that the UKB is an autonomous fully
federally-recognized Tribe, eligible for separate services and land
acquisition, but for Amendment 86 of P. L. 101-116, 2nd Sess., 1991. CNO
failed to challenge these determinations in any way under the APA.

In a Letter dated 10 November 1989, Senator Daniel K. Inouye,
Chairman of the Senate Committee on Indian Affairs, to John Ross, then
Treasurer of the UKB, Senator Inouye assured the UKB:
Your status as a recognized tribe is not in question. However,
the decision of the BIA in 1980 to designate the Cherokee Nation as
the recipient of 638 grants and contracts, to the exclusion of your
tribe, is now being reviewed. It is certainly my hope that the
review will be favorable to the right of the United Keetoowah Band
to contract for its own programs and services.

In United Keetoowah Band - Cherokee Nation, 30 October 1990, a
memorandum from Dr. Eddie Frank Brown to the Solicitor of the Department
of the Interior, Brown covered the Department's position paper on the
UKB issue. The Assistant Secretary concluded, "the United Keetoowah Band
has been recognized as a tribe since 1950, and we do not want to
withdraw that recognition. Absent Congressional action, we do not have
the authority to do so." The memorandum substantiated the sovereign
claims of the UKB from 1939 to the present, except that he had failed
altogether to review the record and determinations of the BIA and the
Band proving that the UKB has a distinct, 1949 Base Roll and separate
membership criteria from CNO. Referring to the OIWA, the Position Paper
recalled:
The OIWA allows "the Indians of Oklahoma to exercise substantially
the same rights and privileges as those granted to Indians outside
of Oklahoma by the IRA." H. R. Report No. 2408, at 3. Thus, the
Indian governments that reorganized under Section 3 of the OIWA are
of the same legal and independent character as those non-Oklahoma
Indian tribes that reorganized pursuant to Section 16 of the IRA
(25 U. S. C. Section 476).

The equities here are not on the side of the U. S., Oklahoma or CNO. The
UKB, as a matter of Federal-Indian law, is a government organized under
OIWA and IRA since 1950. The UKB is in no sense subordinate to the CNO.
The UKB Charter and Constitution are senior to the 1975 CNO Constitution
(CNCA), which is not a proper organic document under OIWA and IRA. CNO
has had the opportunity to accept funds and contract out programs under
P. L. 93-638 to the exclusion of the UKB, allegedly on behalf of and for
the benefit of the UKB, and now is participating in Self-Governance
agreements with the U. S., purporting to represent the interests of the
UKB. CNO is incompetent to represent the interests of the UKB, lacks
sovereign interests over the affairs of the UKB, and has had no formal
intersovereign relationship the UKB since 4 March 1906. To test these
statements, one needs only to review the status and history of Cherokee
Nation since at least 1898.
* * *
Notwithstanding the Agreement with the Cherokee Nation, April 1,
1900, which declared the intent of Congress that the governments of the
Five Civilized Tribes would expire in 1906; and notwithstanding other
statutes that pared away particular governmental functions of Cherokee
Nation and the other four Nations in the meantime; the 1906 Act
nonetheless preserved certain residual, primarily executive powers of
the Five Tribes' governments, while restoring none of the terminated
functions, or the revoked Constitutions. Under the OIWA (1936), any
Oklahoma tribe theoretically could form a council, adopt a constitution,
by-laws, and charter with secretarial approval, and reorganize under the
IRA, just as tribes in other states could. However, in a Memorandum to
the Indian Organization Division regarding the eligibility of Cherokee
Nation in particular to avail itself of the benefits of the OIWA, the
Director of Lands of the Department of the Interior determined on 25
October 1937 (File #163618), that:

It is not believed that the Oklahoma Welfare Act may be used
as authority to reorganize the existing tribal government of the
Cherokee Nation. On the contrary, the Act appears to contemplate
the creation of a new, separate and distinct organization, to adopt
its own constitution and bylaws and to procure a charter of
incorporation without regard to the existing government.
It is believed that the powers and jurisdiction of the new
organization should be limited to the property and other benefits
to be acquired under the Act. Those persons whose names are on the
final rolls of the Cherokee Nation have certain rights in the
remaining assets of the tribe, and if any attempts were made to
deny them the right to vote on matters that may affect such rights,
it would doubtless give rise to litigation.

CNO claims all the benefits and advantages of OIWA and IRA
reorganization, with none of the burdens or responsibilities. CNO claims
to be full and exclusive successor to the powers and assets of the Old
Cherokee Nation, with the right to discriminate among classes of
descendants with impunity. CNO claims title to all the IRA purchases for
a Cherokee tribe organized in Oklahoma under OIWA and IRA, although the
only such tribe is the UKB. No Act of Congress, judicial determination
or administrative decision ever has contradicted or reversed the 25
October 1937 determination expressly.

* * *
The Act of Oct. 22, 1970, 91st Cong., 2nd Sess., P. L. 91-495, 84
Stat. 1091, the "Bellmon Bill," "Authorizing Each of the Five Civilized
Tribes of Oklahoma to Select Their Principal Officer, and for Other
Purposes," exemplified efforts to overrule the BIA's interpretation of
the 1906 Five Tribes Act, under which the U. S. appointed the Principal
Chiefs. The Act restored the Cherokee Dawes enrollees' and descendants'
right to select leaders, but did not revive suspended powers which
earlier legislation had dissolved, suspended, or conditioned. While
restoring the opportunity to exercise certain inherent rights of
sovereignty, the Bellmon Bill extended to the Cherokee Nation no
exemptions from the procedural requirements for organization under the
OIWA.

In 1971, Cherokee Nation reelected Principal Chief W. W. Keeler in
an informal national plebiscite. In Harjo v. Kleppe, 420 F. Supp 1110
(D.D.C. 1972), aff'd. sub nom. Harjo v. Andrus, 581 F.2d 949 (D.C.Cir.
1978), the U. S. Supreme Court determined that the Curtis and Dawes
legislation had preserved the governments of the Five Tribes to the
extent Congress had not limited their powers. OIWA, IRA, and later
legislation made it possible for some of the Five Tribes to organize new
governments in the 1970s and regain aspects of their sovereignty that
earlier congressional Acts had restricted or eliminated. However,
eligibility to reorganize is not the same as reorganization;
reorganization, as the UKB can attest, can be an excruciatingly
demanding process.

As a matter of administrative convenience, the Secretary of the
Department of the Interior and Congress condoned the unconventional
quasi-reorganization of the CNO that followed the last term of Principal
Chief W. W. Keeler (1971-1975). As the Cherokee Nation drafted a
Constitution, the CNO properly relied on Harjo in concluding that CNO
indeed had retained aspects of inherent sovereignty through the years;
however, their analysis did not consider the problem of the erosion of
Cherokee Nation's sovereignty through congressional and administrative
acts which still had its effects on Cherokee Nation, leaving intact only
unaffected aspects of inherent sovereignty. Commissioner of Indian
Affairs Morris Thompson approved the Constitution for referendum on 5
September 1975, as "seconded by Principal Chief of the Cherokee Nation,
Ross O. Swimmer" on 2 October 1975. Voters approved the Constitution the
next year in a tribal election, not a secretarially-supervised Federal
election in a manner comporting with Federal regulations governing the
conduct of OIWA and IRA elections (now at 25 C. F. R. Section 81).
Article I of the CNO Constitution, "Federal Regulations," stipulates
that:
. . . [T]he Cherokee Nation shall never enact any law which is in
conflict with any Federal law.
Objectively speaking, the content and structure of the CNO Constitution
itself flagrantly violated Federal law regarding reorganization of
Oklahoma tribes, if reorganization under OIWA was the intent of the
framers. However, Article I of the CNO Constitution, "Federal
Regulations," also stipulates that:
The Cherokee Nation is an inseparable part of the Federal Union.
The Constitution of the United States is the Supreme law of the
land; . . . [Emphasis added]

This language leads one to conclude that the CNO depends for its primary
source of Constitutional, sovereign authority on the sovereign power of
the United States, under the U. S. Constitution, and secondarily on the
residual inherent powers remaining to the CNO since 1906, to the extent
that Congress has restored those powers since the Agreement with the
Cherokee Nation, 1 April 1900. Since CNO has not availed itself of the
opportunity to reorganize under OIWA and IRA, the form of organization
under which the Tribe now operates requires only secretarial condonation
of the actions of a Principal Chief, whom CNO voters now select and may
remove from office, operating under a governmental form of
administrative convenience. The 1975 CNO Constitution, then, is a means
for CNO to conduct business as other tribes do, while leaving the 1906
status quo of Federal management of, and authority over, Cherokee Nation
affairs essentially intact. This means that, though selected by voters,
the Principal Chief of Cherokee Nation is essentially a colonial Viceroy
subject to the will of the U. S. Executive Branch. CNO's Constitution,
at "Article XVIII. Adoption" stipulates that:
This Constitution shall become effective when approved by the
President of the United States or his authorized representative and
when ratified by the qualified voters of the Cherokee Nation at an
election conducted pursuant to rules and regulations promulgated by
the Principal Chief.

The legal effect of this Article depends entirely on precisely the same
presidential or secretarial deputization of the Cherokee Nation
Principal Chief, and approval of the Principal Chief's actions, that
Congress contemplated in the 1906 Act. The 1975 CNO Constitution
purported to supersede the 6 September 1839 Cherokee Nation Constitution
(CNCA, "Article XVI. Supersedes Old Constitution 1839," stating, "The
provisions of this Constitution overrule and supersede the provisions of
the Cherokee Nation Constitution enacted the 6th day of September
1839.") This simply reflects the common understanding that since the old
Constitution was a dead letter in 1906, any new approved Constitution
supersedes the old.

Every other Oklahoma tribe that organized under OIWA and IRA had to
obtain secretarial approval of a Constitution, then secretarial approval
of an OIWA draft charter. Thirty percent of the qualified voters were
then supposed to ratify a Constitution, and then the Charter, in
separate sequential Federal elections. By law, the Charters (not the
Constitutions) of OIWA/IRA organized Oklahoma Indian tribes delineate
most of the powers of such tribes. CNCA, the annotated Code of Cherokee
Nation of Oklahoma, contains the 1975 Constitution, code, treaties,
agreements, and Self-Determination legislation, and even the 24 January
1983 speech of President Reagan on Indian Policy, but one searches in
vain for any mention of the Oklahoma Indian Welfare Act or the Indian
Reorganization Act because the CNO Constitution evolved largely outside
the body of modern Federal-Indian law which is mandatory for other
Oklahoma tribes, including the UKB. Despite occasional explorations of
the possibility of reorganizing, Cherokee Nation of Oklahoma never has
proposed or received an OIWA Charter from the Secretary of the Interior,
or submitted its approved Constitution to a secretarially-supervised
election as the OIWA, 25 C. F. R. 81, and 25 U. S. C. 476/479 of the IRA
require.

In contrast, in helping to draft the UKB Charter of 1950, the BIA
ordered the UKB to design the document so that the UKB itself could
extend such a Charter to an organization composing the non-Keetoowah
Dawes enrollees of Cherokee Nation. Oddly enough, until the UKB alters
its Constitution to make 1/4 Cherokee blood quantum mandatory for future
members under the proposed Amendments, the Cherokee Dawes Roll
descendency group composing the population of Cherokee Nation of
Oklahoma still has the right, in theory, to apply for reorganization
under UKB jurisdiction, with the consent of the UKB Council. Of course,
to date, the Cherokee Nation of Oklahoma never has sought an OIWA
charter through the UKB. In 1950, the Secretary declared, in approving
the UKB Charter, Constitution and By-laws, that "All officers and
employees of the Interior Department are ordered to abide by the
provisions of the said [UKB] Constitution and By-laws." [Letter, 9 May
1950, William E. Warne, Assistant Secretary, approving the Constitution
and By-laws. *: IV] Recall that the CNO Constitution, Article I,
"Federal Regulations," stipulates:

[T]he Cherokee Nation shall never enact any law which is in
conflict with any Federal law.(Cherokee Nation of Oklahoma
Constitution, CNCA, 2 October 1975)

Cherokee Nation's laws attacking the sovereign rights of the UKB plainly
violate Federal law. Neither Congress nor the BIA appear to care.

If the Constitution of Cherokee Nation of Oklahoma has any legal
effect, then the actions of CNO toward the UKB since 1975 which
contradict the organic documents or laws of UKB are entirely ultra
vires. CNO refuses to recognize the existence of the UKB, while claiming
that the UKB and its members are citizens and subjects of CNO. The
Keetoowah Band, which now is the UKB, remained when the Old Cherokee
Nation Constitution was revoked in 1906. The Cherokee Nation's claims of
jurisdiction over the UKB died with the old organization, though the
Cherokee Nation or Tribe continued to exist for certain purposes as the
1906 Act provides.

The reorganization of the UKB under OIWA and IRA affirmed
conclusively the separate sovereign interests and identity of the UKB.
(Recall that Article XVI of the 1975 CNO Constitution expressly
overruled and superseded "the provisions of the Cherokee Nation
Constitution enacted the 6th day of September 1839.") Nothing in the CNO
Constitution expressly recognizes the UKB or its members or entitles
them to membership or registration in CNO. In contrast, while
recognizing the Delaware Tribe as a part of CNO which is allowed
separate organization under CNO subject to CNO authority, CNO bars the
Delaware Tribe from undertaking any actions contradicting the authority
of CNO (Cherokee Nation of Oklahoma Constitution, CNCA, 2 October 1975)

Congress has restored certain powers to CNO since 1937, thereby
making it easier for CNO to function without reorganizing the Cherokee
Tribe under an OIWA/IRA government. The BIA and Congress have limited
the effects of pre-1896 legislation on the Cherokee Nation in ways that
have allowed CNO to exercise aspects of sovereignty that Congress had
diminished or restricted in 1906, including aspects of criminal and
civil jurisdiction. In 1991 (proving that despite all the self-righteous
cant to the contrary, Lobbying is all), Congress extended permission in
Amendment 86 to P. L. 101-116 for CNO to undermine the property and
governmental rights of the UKB. The impact on UKB and its members has
been dangerously discriminatory. The effect is the confiscation of a
vested property right without due process.
* * *
The bar against UKB's eligibility for any Federal funding,
including funds from the Administration for Native Americans, may be
permanent. At the same time that the BIA conceded the Band's existence
as an autonomous entity (24 August 1992), the BIA also acknowledged the
Band's eligibility to receive land in trust. From then on, the CNO
undertook a campaign with the support of the Oklahoma delegation to
assure that the UKB will have no opportunity to acquire land in trust in
any other state. On 26 January 1993, Principal Chief Wilma Mankiller of
Cherokee Nation of Oklahoma included the UKB in a list of some 40
unrecognized petitioning groups claiming Cherokee extraction in an
advisory letter to governors in their respective states, although the
name of the UKB appears on the Federal Register listing of recognized
tribes. The official excuse from CNO spokesperson Mr. Lee Fleming for
this flagrant misrepresentation was that the letter was intended "for
information" only, and therefore, CNO could not be held responsible. To
the contrary, Chief Mankiller's shield is sovereign immunity, since her
letter purported to be an official intergovernmental communication. The
UKB has received no gesture of apology or retraction for this "error,"
and shall receive none. The actions of CNO require the approval of the
Secretary; therefore, these calculated attacks have the official
authorization of the Secretary.

Cherokee Nation of Oklahoma, ever confident that political pressure
eventually will lead to the congressional revocation of the UKB Charter
or to a requirement that the UKB submit to the acknowledgment process at
25 CFR 83, already have characterized the UKB in deliberately fraudulent
public statements as a petitioner for acknowledgment. In a determination
published in the body of the Proposed Rule Regarding Department of
Interior Policy on Recognition of Indian Tribes, Vol. 56, No. 161,
Federal Register 47320 (Sept. 18, 1991), the Secretary finally declared
that when any third party attacks the status of a federally-recognized
tribe, the Department will protect only tribes who have survived the 25
CFR 83 process; any other tribe's only recourse is to use the Federal
acknowledgment process to vindicate itself. CNO has tried and failed
repeatedly to force the UKB to submit to the tests of the acknowledgment
process to eliminate the Band. At this point, the UKB, though a
recognized tribe, is ineligible even to apply for funds for status
clarification from the Administration for Native Americans for which
unrecognized tribes are eligible due to CNO's intervention. The UKB's
status problems stem entirely from the perception that the UKB competes
with CNO, and from the false perception that both share the identically
same population; ironically, that competitive atmosphere emanated
directly from CNO's decision to eliminate the UKB.

THE NON-PETITION OF THE NON-TERMINATED, TERMINATED, UNACKNOWLEDGED,
UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA FOR RESTORATION
UNDER 25 C. F. R. 83 (NOT TO BE CONFUSED WITH A REQUEST FOR RECOGNITION)

In 1990 and 1991, Principal Chief Wilma P. Mankiller demanded of
the BIA and Congress that the UKB be compelled against their own will
and best interests to submit to the Federal acknowledgment process to
prove their status as a tribe. Initially, she demanded congressional
hearings that would compel the Band to produce, in effect, a complete
documented petition seeking acknowledgment. Having achieved the de-facto
termination of the Band in the passage of Amendment 86 to P. L. 101-116,
she did an about-face, claimed in a letter to the appropriate
congressional leaders and committees that neither CNO nor the UKB wanted
a hearing on the matter in spring of 1992 in Tahlequah, and that Chief
John Ross had agreed to send a similar request. Chief Ross never made
such an agreement and never sent any such letter.

The narrative and bibliographies below will address the criteria
for acknowledgment in 25 CFR 83.7 that require the Band to prove that
it:
(a) [Has been i]dentified from historical times until the present
on a substantially continuous basis, as "American Indian," or
"Aboriginal;"(b) [Is a Tribe, a substantial portion of which
inhabits] a specific area or [lives] as a community viewed as
American Indian and distinct from other populations in the area and
[prove that its] members are descendants of an Indian tribe which
historically inhabited a specific area;
(c) Has maintained tribal political influence or other authority
over its members as an autonomous entity throughout history until
the present;
(d) Provides a copy of a governing document or statement describing
in full the membership criteria and procedures through which the
group currently governs its affairs and its members;
(e) Has membership consisting of individuals who have established
descendancy from a tribe which existed historically or from
historical tribes which combined and functioned as a single
autonomous entity;
(f) Has membership composed principally of persons who are not
members of any other tribe; and,
(g) Is not expressly terminated or otherwise forbidden to
participate in the federal-Indian relationship by statute.
The Band has met criterion 25 CFR 83.7, in that the Band has provided on
many occasions to all interested parties and the public:
(d) . . . a copy of a governing document or statement describing in
full the membership criteria and procedures through which the group
currently governs its affairs and its members," consisting of a 3
October 1950 Charter, a 3 October 1950 Constitution and By-laws,
over 50 years of resolutions, ordinances and statutes, a 1949 Base
Roll as amended in 1985, and continuing enrollment updates between
1949 and the present.
Other membership-related criteria of 25 CFR 83.7 require the Band
to show that it:
(e) "Has membership consisting of individuals who have established
descendancy from a tribe which existed historically or from
historical tribes which combined and functioned as a single
autonomous entity;" namely, the Keetoowah Band of Indians of the
Cherokee Tribe; and,
(f) "Has membership composed principally of persons who are not
members of any other tribe."
The narrative will address criterion (g) later.
United Keetoowah Band of Cherokee Indians in Oklahoma meets the
criteria the Acknowledgment and Research Branch of the BIA uses for
determining existence an Indian Tribe (25 C.F.R. 83.1-11, redesignated
1985). The following section applies historical Federal, tribal and
other records to demonstrate that the Band can satisfy the requirements
of 25 Code of Federal Regulations Sec. 83. 7 (a) - (g). Bibliographical
citations are in the full narrative and appendices. Below appears a
summary of the accompanying narrative, establishing the evidence
supporting the Band's contention that it meets the following criteria
for acknowledgment in 25 CFR 83.7. The UKB will demonstrate that the
Band:
(a) "[Has been i]dentified from historical times until the present
on a substantially continuous basis, as 'American Indian,' or
'Aboriginal,'" as cited in Federal, Territory, State, Tribal
records and scholarly sources;
(b) [Is a Tribe, a substantial portion of which inhabits] a
specific area or [lives] as a community viewed as American Indian
and distinct from other populations in the area and [prove that
its] members are descendants of an Indian tribe which historically
inhabited a specific area," as cited in Federal, Territory, State,
Tribal records and scholarly sources; and,
(c) "Has maintained tribal political influence or other authority
over its members as an autonomous entity throughout history until
the present," as cited in Federal, Territory, State, Tribal records
and scholarly sources.

In the narrative, a note ("a", "b", and/or "c") follows each statement,
indicating which one or more of these criteria that particular statement
addresses. The Brief UKB Chronology covers the same basic points.
1. At the old Mother Town of Keetoowah in Swain County and its
affiliated smaller towns, North Carolina, political succession continued
through elected Captains and a Chief (pre-contact until about 1833; a,
b, c).
2. The Keetoowah Indians, despite great disruption of their culture
and political town structure between the American Revolution and the
Removal period, retained as much as they could of their primary rules
and ways, by enforcing traditional laws through customary sanctions and
the law of blood (a, c).
3. Following their removal to Indian Territory with the Old Settlers
(mostly between 1805 and 1835; a, c) as well as Eastern Emigrants (1835-
1840; a, c), the Keetoowah Indians reorganized under a Constitution in
1858 in Oklahoma, drawing in Keetoowah adherents from all nine
Districts, but primarily from the region composing five northeastern
Oklahoma counties today (b).
4. The Keetoowah Indians called their organization the Keetoowah
Society, and throughout the nine Districts, they worked to resume the
role the Mother Town of Keetoowah enjoyed in pre-contact and pre-Removal
historical times under the leadership of local headmen called "Captains"
and a Head Captain or "Chief" (a, b, c).
5. As early as the Civil War, conflicts arose about the purposes and
directions of the organization, so that while some Keetoowahs wanted to
preserve the ancient Keetoowah culture, language and religion in pure
form as possible, others preferred to amalgamate the old ways with what
they wanted from non-Indian culture, including christian churches (a).
Indeed, the followers of the Jones family of church leaders were
instrumental in the reorganization of the Keetoowahs in the 1850s (a).
6. In their efforts to preserve the Keetoowah group as a political
entity, some factions preferred a more militant role in opposing the
Southern Confederacy, particularly the so-called "Pin Indians;" but all
loyal Keetoowahs supported the Union (a, c).
7. While the Keetoowah Indians remained loyal to the end of the Civil
War, they shared the common humiliation of all Cherokees resulting from
the punishment of Cherokee Nation for its official position of siding
with the Southern Confederacy (a, c).
8. The Treaty of 1866 abrogated all earlier treaties to the extent
they were inconsistent with the 1866 Treaty. The Keetoowah delegates to
the Treaty convention very reluctantly signed (a, b, c).
9. When congressional investigations led to the discovery of
widespread corruption in the Indian Service and the Five Tribes
governments, and when proponents of Oklahoma statehood pressed for
elimination of the original tribal governments, the Keetoowah Indians
had to make difficult decisions regarding the direction of the tribe (a,
c).
10. While they intended to maintain a tribal government and functions
regardless of the fate of the Cherokee Nation as a whole, the Keetoowah
Society eventually acquiesced to the Agreement with the Cherokee Nation,
April 1, 1900, the Curtis Act and the 1906 Act, to the political
dissolution of the corrupt Cherokee government that the Keetoowahs
loathed anyway, and to the allotment in severalty of Cherokee lands (a,
b, c).
11. When Cherokee Nation was dissolved, members of the Society lived
throughout most of the old Cherokee districts (but with small
constituencies in Cooweescoowee and Canadian Districts; a, b, c).
12. Many Keetoowahs regarded the prospect of allotment of the Tribe's
lands in severalty as so calamitous that they withdrew from the
Keetoowah Society (a, b). Several hundred of these Keetoowah Indians
formed a number of secretive, traditionalist, exclusive factions as
early as 1893, including the Nighthawk Keetoowahs, that refused until
1910 or later to accept the work of the Dawes Commission (a, b). These
groups were clustered around Gore and Vian, in Sequoyah County.
13. In 1905, knowing that the Cherokee Nation was about to dissolve for
useful purposes, the Keetoowah Society reorganized. Using a Federal
Corporate Charter from the Territorial District Court in Tahlequah, as
the Keetoowah Society, Inc., this faction attempted to function as a
polity composed of a Chief and Council (20 September 1905) for the
express purpose of carrying on the political and social functions of a
Band, but because it omitted opposing factions that arose after 1900,
never fully again represented the interests of the Keetoowah Indians as
a body (a, b, c).
14. The other main faction, the Nighthawks, some of whose leaders now
erroneously claim the UKB is a splinter of their religious cult,
withdrew from political activity and barred its members from affiliation
with any other groups or entities, including christian churches (a, b,
c).
15. As the number of tribal towns associated with the Nighthawks
dwindled between 21 in about 1900 to 3 in 1937, the remnants of the
"non-political" Nighthawk faction eventually split into a variety of
factions, including two ceremonial grounds run by factions of Redbird
Smith and his family, as well as the Goingsnake "Seven Clans" fire and
the Four Mothers Nation. Other Cherokee political factions of Keetoowahs
arose, partly due to concerns about potential claims, partly to organize
formally as a Tribe. These factions of Oklahoma Keetoowah Cherokees
pulled together a coalition from the northern 14 counties of Oklahoma
between 1920 and 1924 to elect a Chief (Levi Gritts), and an Executive
Council (a, b, c).
16. During the 1930s, the Keetoowah factions, now without any support
from several dwindling groups of Nighthawk separatists, supported the
idea of reorganizing all the Keetoowah Cherokees in all the old clan
districts as a united Band. They hoped to avail themselves of the
benefits of the proposed Indian Reorganization Act. At a hearing in
Muskogee on 22 March 1934, Keetoowahs showed up in force to present John
Collier and his staff with a formal petition and letter of endorsement
for the Bill (a, b, c). Collier complemented the Keetoowah Band's
enthusiasm and understanding for reorganization in a variety of writings
and press releases. Felix Cohen, Associate Solicitor for the Department
of the Interior, carefully monitored their public, highly organized
efforts in support of IRA (a, c).
17. The Land Division in the Department of the Interior concluded in
1934 that while the Cherokee Nation was neither interested in
reorganizing because most members had abandoned tribal relations, nor
even capable of doing so, the Keetoowah Indians were willing and
probably able to reorganize in Oklahoma with great success, if the
factions would only pull together (a, b, c).
18. Though the participation of Oklahoma Indians in the IRA was not
possible until the Thomas Bill of 1936 enabled reorganization under IRA
through the OIWA, the Keetoowahs never lost sight of their goal, and the
Keetoowah Society, Inc., sought permission to represent the Keetoowah
Indians, including the various factions whose members refused to join
the Keetoowah Society, Inc. (a, b, c). This effort faltered briefly when
Associate Solicitor Frederick Kirgis issued his Keetoowah Society
Opinion in 1937, saying that the Society, standing alone, was only a
society of the Keetoowah Indians, not a Band [Opinions of the Solicitor
of the Department of the Interior Relating to Indian Affairs: 1917-1974,
Vol. I (Washington, D. C.: U. S. Department of the Interior, 1975), p.
774] (a, b, c).
19. Undeterred, the Keetoowah Indians began working with the
Organization Field Agents through Five Tribes Agency after 1937. It was
only after the Kirgis Opinion that BIA's Five Civilized Tribes Regional
Organization Director A. C. Monahan learned that the Keetoowah Society,
Inc., was the source for all the other factions, and that the
Corporation had held a Federal Corporate Charter as a political entity
since 20 September 1905. Monahan ordered agents Dwight and Exendine to
aid the factions to reorganize. D'Arcy McNickle's determination of 24
April 1944 found the UKB was a historical tribe. Rather than merely ask
the Solicitor to rewrite the opinion, the Acting Secretary, Abe Fortas,
to request congressional action allowing the UKB to reorganize under
OIWA and IRA.
20. The UKB adopted a Constitution and By-laws. They elected officers
between 1939 and 1946, seating a Chief, Reverend John Hitcher, and a
Council (a, b, c). Work among various factions united most Keetoowahs
(a, b, c).
21. Some Five Civilized Tribes Agency employees hoped to use the Band
as a vehicle for restoring the Old Cherokee Nation, or at least for
reorganizing all the Cherokee Dawes Commission enrollees and their
descendants under OIWA and IRA, because the Director of Lands, Land
Division, Department of the Interior, already had decided that while the
Cherokee Nation was not terminated, any new organization of the Cherokee
Tribe would have to be an entirely new entity whose property rights
would stem from the OIWA and IRA.[(MEMO TO INDIAN ORGANIZATION, 25
October 1937, from Director of Lands (WDW) to Daiker, Indian
Organization (163618); see also Solicitor's Opinion, 1 October 1941, 1
Op. Sol. on Indian Affairs 1076 (U. S. D. I. 1979)]
22. The Secretary determined that an organization of the Keetoowah
Band, made by reuniting the various Keetoowah factions who wanted to
participate, does not conflict with the residual government of the
Cherokee Nation. The latter was to retain its 1907 status, as a body
under a Principal Chief whom the President (later, the Secretary of the
Interior) appointed to carry out responsibilities regarding the
disposition of the assets of the Old Cherokee Nation (a, b, c).
23. The UKB carried out its own governmental functions in Oklahoma as
a reorganized body, without interfering with the Cherokee Nation, its
Principal Chief or his functions, because the UKB interests in Cherokee-
related issues was entirely restricted to interests of the UKB
constituency. That constituency consisted primarily of restricted
Indians, non-Dawes enrollees, and other Keetoowahs who remained loyal to
the Keetoowah political ideals (a, b, c).
24. So, the United Keetoowahs finally decided by 1942 to remain
exclusively a "Keetoowah" polity that would include only those of
Cherokee descent who met the membership requirements of the united Band
(a, b, c). On 24 April 1944, Assistant Commissioner D'Arcy McNickle
found that the UKB was a historical tribe, and meeting with BIA's Chief
Counsel on 5 June 1944, recommended that Congress pass legislation to
clarify the UKB's status and right to reorganize as a tribe under OIWA
and IRA.
25. Since the UKB reorganization process could not begin until Congress
agreed to offer the UKB the opportunity to reorganize under OIWA and
IRA, Acting Secretary Abe Fortas, Congressman Stigler and Senator
Thomas, among others, supported the effort, and on 10 August 1946,
Congress did pass the Keetoowah Act as part of a package measure that
included a gift of land to the Cheyenne-Arapaho Tribe in Oklahoma. The
reorganization process took another four years (a, b).
26. The UKB, incorporating all the factions of the Keetoowah Indians of
the Cherokee Tribe throughout the nine districts of the old Cherokee
Reservation, has reposed its secular governmental authority in the line
of democratically-elected Chiefs (also informally called, in the 1940s,
"Presidents") Executive Officers and Tribal Council under its OIWA
corporate Charter, Constitution and By-laws, since 3 October 1950 (a, b,
c).
27. Between 3 October 1950 and 3 October 1960, while the Secretary
retained approval authority over the UKB according to the UKB organic
documents, the Secretary could have authorized the Principal Chief of
Cherokee Nation to act as the Secretary's agent in approving decisions
of the UKB; but the Secretary made no such delegation of authority to
Principal Chief Keeler. Any such delegation of authority would have
expired on 3 October 1950, according to the Department's own
determination (see Letter, 15 October 1961, from Assistant Chief Tribal
Operations Officer Pennington to Muskogee Area Director Virgil N.
Harrington, regarding Harrington's 7 August 1961 inquiry as to the
effect of Sections 5, 6 of the UKB's Charter on secretarial approval
authority after 3 October 1960). Finally, despite undocumented and
spurious claims to the contrary, archival sources demonstrate that the
Band has continued to survive and function as a tribal entity since
reorganization under one unified government, despite internal
factionalism characteristic of all governments (a, b, c).
28. When the UKB Council attempted to establish tribal offices at
various sites, and when the UKB created an Enterprise Board and
attempted to engage in economic development ventures to serve its
members and finance advocacy activities within the fourteen northeastern
counties of Oklahoma, CNO consistently intervened and made off with the
opportunity or spoiled it whenever possible, rationalizing that a UKB
opportunity is a CNO opportunity. For example, the UKB attempted to
develop a bingo business at Roland, Oklahoma, and had arranged an
economic development plan and approached the BIA with a land acquisition
request, the BIA denied the request, and promptly handed the business
opportunity directly over to CNO. CNO easily obtained secretarial
approval of their Roland land acquisition request, and now runs Bingo
Outpost on the spot, while claiming that the UKB is unrecognized,
selling sovereignty, and only wants recognition to do gaming. When the
UKB established over a score of smokeshop operations throughout a three-
county region, CNO and the State cooperated to undermine and shut down
all the operations.(a, b, c)
29. In 1987, in the course of intervening to take over the UKB's
opportunity to buy an abandoned horserace track in Rogers County called
Blue Ribbon Downs, CNO retained a law firm to investigate CNO's legal
status to determine whether it would be legally possible for CNO to
engage in a horserace track operation.(DeGeer and Bread, "Federal
Legislation Affecting Cherokee Nation," Memo to Gene Stipe, Stipe Law
Firm, McAlester, Oklahoma, 2 November 1987) This evaluation of the legal
status of Cherokee Nation of Oklahoma as of Fall 1987 surveyed or
contained:
* Overview of the history of the laws impacting the Five
Civilized Tribes
* 19 Treaties with the U. S. (and limitations imposed therein)
* Curtis Act of 1898
* 1901 Cherokee Agreement
* Cherokee Constitution
* Jurisdictional Map
* Solicitor Opinions believed to be pertinent.
This analysis does not claim that CNO has reorganized under OIWA or IRA,
referring instead to the 1906 Cherokee Nation Constitution, as
superseded in the 1976 CNO Constitution, and the legal effect of various
Acts of Congress preserving or limiting CNO's sovereign authorities. The
memo describes limitations on the inherent sovereignty of the tribe that
congressional legislation has imposed since 1890, which only
reorganization under OIWA and IRA could remedy. The memo does not deal
with the relationship between the CNO and the UKB, doubtless because the
authors realized the CNO has no sovereign authority over the UKB. The
memo concluded that CNO's claims to inherent sovereignty are in doubt,
and the writers recommended that CNO comply with all state laws, as a
precaution, in any development venture.(a, b, c)
30. In 1990, a group of Cherokee Nation of Oklahoma members called the
Reformed Keetoowah Party attempted to sweep out the UKB Council,
claiming that the UKB was a subsidiary of CNO and never had been
federally-recognized, and that the UKB was attempting to start a Civil
War in order to create a new tribe. An election contest and lawsuit
marred John Ross's succession to the office of Chief. In November 1990,
at the urging of Principal Chief Wilma Mankiller, the BIA's Area Office
directed staff to review files at the UKB Enrollment Office and compile
a list of UKB members who never had registered voluntarily in CNO,
finding over 3,000 living members with exclusive UKB enrollment. CNO's
continuous interference with internal UKB politics, and an election
dispute in 1990 resulted in a determination by the Department of the
Interior to force the UKB to operate under a BIA approved Council,
pending a new election.
The 3 October 1950 Charter, approved by Secretary of the Interior
William Warne on 9 May 1950, and the Constitution and By-laws, approved
by a popular vote by over 30% of qualified UKB members in a
secretarially-authorized and supervised Federal election on 2 October
1950, remain very much intact and effective. Due to secretarial
acquiescence, the Band eliminated secretarial approval of its
governmental acts as cited in their governing documents by operation of
law on 3 October 1960. Also, the Charter, Constitution and By-laws,
Enrollment Ordinances, Base Roll, and many updates as recommended by the
Enrollment and Membership Committee and adopted by the Tribal Council in
individual resolutions from 1950 to the present, show the membership
criteria and procedures by which the Band has governed its affairs,
regarding membership.
The issue of UKB membership receives more extensive review below.
It is sufficient here to add that the members of the UKB Tribal Council
always have participated in enrollment activities and in the
verification of qualifications of prospective members, and always have
approved enrollment updates through formal Council action. Tribal
membership criteria have altered through the years, as conditions and
needs have changed. The 1939 Roll, reaffirmed in 1949, became the
foundation of the Base Roll, subject to amendment in the first five
years after approval in 1950. During that period, consistent with the
1950 enrollment laws, members of 1/4 or more Cherokee ancestry, using
the Dawes Roll or other acceptable proof of Cherokee ancestry by blood,
were adopted into the Band. Enrollment activities continued for fifteen
years. In 1963, the UKB Council worked on an updated roster as the
result of additional membership field work, and for a short time, the
enrollment ordinances required new members to prove 1/2 or more degree
of Cherokee Indian blood. Enrollment work continued sporadically, until
in 1978, when the UKB Council sought aid from Muskogee Agency to restore
order following the latter years of Chief Glory's somewhat chaotic
administration, and the Enrollment Committee started work on a new
addition of adoptees, under a series of new ordinances. New additions to
the Roll occurred through Council resolutions in 1980, and in another
series of additions, concluding in October 1982.
Using funds from a 1984-1986 $70,000 P. L. 93-638 grant to update
and revise the Roll, the UKB reinvestigated and updated all members'
files and brought their contents up to date, with the active cooperation
of Muskogee Agency staff and technical assistance. Comporting with the
terms of the grant, the Enrollment and Membership Committee and
Enrollment Specialist compiled a list of all members who had met the
blood quantum requirements in effect at the date of each individual
member's enrollment, then verified which members were 1/4 or more
degree, and which members had responded to requests for current
information regarding residency, marital status, family status, and
other information. The staff compiled information on deaths since the
last enrollment update. Information regarding members whose files were
incomplete as a result of this investigation, including those who were
considered less than 1/4 degree Cherokee, appeared on a separate list of
members whose files were incomplete or somehow deficient, and yet who
were considered entitled to membership. The Band delivered these
compilations to the Muskogee Agency in 1986, and submitted these records
to Federal District Court for the Northern District of Oklahoma in Tulsa
in 1987, upon subpoena by the State of Oklahoma, as a tribally-certified
roll. Cordelia Tyner, a/k/a/ Cordelia Tyner Washington, and the United
Keetoowah Band of Cherokee Indians v. State of Oklahoma, ex re., David
Moss, District Attorney and David Moss, individually; M. Denise Graham,
individually, No. 87-2797, U. S. D. C., N. D., Oklahoma. See also:
Appeal from U S. D. C., N.D. Okla. D. C. No. 87-C-29-E, 14 March 1991.
UKB Membership Ordinance 90 UKB 9-16 16 September 1990 provided
that any descendant of 1/4 Cherokee Indian blood of any enrollee on the
1949 UKB Base Roll, or on any other historical Cherokee Roll, shall be
eligible for enrollment in the UKB. Final determinations of Cherokee
Indian blood quantum continue to rest with the UKB Tribal Council. Under
that same ordinance, UKB members who held affiliation of any kind with
any other federally-acknowledged tribe were required to relinquish that
membership.

THE TERMINATION OF THE UKB

For reasons that shall become evident below, the UKB has difficulty
responding to the following criterion in 25 C. F. R. 83.7, requiring the
Band to show that it:
(g) Is not expressly terminated or otherwise forbidden to
participate in the federal-Indian relationship by statute.
* * *
In 1991, Congressman Mike Synar (2nd District, Oklahoma) cited in
testimony to a congressional hearing a purported 1980 BIA finding that
the UKB had failed to perform is contractual duties under the 1984
grant, because it had not separated registrees of CNO out of the UKB
roll.(U. S. Congress, House Interior and Insular Affairs Committee
Hearings on 101-116 on FY 1992 Interior Appropriations, United Keetoowah
Band of Cherokee Nation (11 April 1991)) Neither the hearing's Chair.,
Congressman Les AuCoin, nor another witness, Mr. Ronald Eden, caught the
patent logical inconsistency in the testimony, in that it would be
physically impossible for any employee of the BIA, however prescient, to
issue a finding in 1980 about a contracting party's performance on a
grant that was not issued until four years later and not completed until
six years later. Further, the alleged "finding" was entirely false. A
simple perusal of the Grant Letter and Final Report from the UKB Council
on the completion of the Enrollment Project would have allayed any real
concerns of Congress that the UKB might be incapable of using P. L. 93-
638 funds properly.

The real problem was that CNO never wanted the UKB to have separate
Federal funds, and certainly never wanted the UKB to have a distinct
Tribal Roll. Although the UKB has made repeated efforts to sort out the
Roll, and though in 1990 and 1993 the UKB Tribal Council was able to
obtain current information (from the Muskogee BIA Agency, not from CNO)
regarding the number of UKB members registered at CNO, these numbers
have continued to shift as UKB members have attempted to relinquish CNO
registration. CNO has been distinctly uncooperative since 1980 as UKB
has attempted to develop an exclusive Roll. The CNO actively has
encouraged UKB members to re-register after relinquishing their CNO
registration, or has refused to accept and record relinquishments (even
of UKB officers and administrators). In some cases, CNO has issued
apparently unsolicited original registration documents to UKB members
and their families who never have applied for registration with CNO in
obvious attempts to keep records confused, and to substantiate their
claims of dual affiliation. The UKB regularly denies contract services
eligibility to UKB members when they attempt to use their UKB
credentials to qualify for services, demanding that only CNO credentials
are valid. Individuals who offer UKB credentials in the first instance
at CNO service agencies characteristically find great difficulty in
receiving services afterwards, upon displaying valid CNO credentials. It
clearly is inconsistent for CNO to claim the UKB Roll is duplicative of
the CNO register, while CNO simultaneously denies the validity of the
UKB Roll. However, as a rule, logical analysis rarely comes into play in
CNO's discriminatory treatment of members of the UKB.

Cherokee Nation of Oklahoma has claimed (since 1979) that all
members of the UKB are eligible automatically for registration in
Cherokee Nation of Oklahoma, because Cherokee Nation of Oklahoma
requires exclusivity of "registration" except for members of the UKB.
This contention is untrue, among other reasons, because many UKB members
are neither Dawes Commission Cherokee enrollees nor descendants.
Cherokee Nation of Oklahoma also has contended (since 1984) that all
Cherokee Nation of Oklahoma registrees were (technically) eligible for
enrollment with the UKB. CNO is not competent to make this allegation,
because UKB membership is a matter for the UKB Council, not any
official, Council, or agency of Cherokee Nation of Oklahoma or of the U.
S. to decide. In the Muskogee hearings for the American Indian Policy
Review Commission on 13 May 1976, Ross O. Swimmer testified, "I think
that the tribe's right to define its own membership is extremely
important."(AIPRC Final Report, 17 May 1977, p. 522) The American Indian
Policy Review Commission found:

There are two specific problems facing the Five Civilized
Tribes: (1) the reliance on the 1907 Dawes Commission rolls as the
sole major determinant of the tribal membership; and (2) the
inclusion of the descendants of the freed slaves of the tribes, as
a result of treaties made after the Civil War, on the tribal rolls.
All descendants of those persons on the Dawes Commission rolls
are considered tribal members for purposes of voting in tribal
elections and referendums, and distribution of judgment moneys.
Therefore, many persons of very little Indian blood are allowed to
vote in tribal elections, making decisions which may affect their
lives not at all, while affecting Indians greatly.
The other membership problem plaguing the Indians of the Five
Civilized Tribes is the inclusion of freedmen bands. After the
Civil War, the reconstruction treaties of the tribes said that they
would provide lands for their freedmen. These freedmen were given
allotments which have long since passed into fee simple status.
However, the descendants of these freedmen are considered tribal
members because of the treaty provisions. It seems strange that the
United States has violated almost every provision of those 1866
treaties, yet it holds the Five Civilized Tribes to their word.
Again, these people do not identify as Indians, the Federal
Government does not recognized them as Indians, yet they make
decisions affecting Indians. Clearly, Congress should allow the
tribes a method for restricting their membership to persons of
Indian descent rather than imposing a Federal definition based on
descendancy from the Dawes Commission rolls. The final irony of the
situation is that, although the tribes must keep the descendants
from the Dawes Commission rolls for tribal political purposes, the
Bureau of Indian Affairs provides services only to tribal persons
of one-quarter or more Indian blood.(Muskogee hearings, 13-14 May
1977, AIPRC Final Report, 17 May 1977, p. 522)

Cherokee Nation of Oklahoma allows registration for voting purposes for
non-freedman Cherokees of any degree or source of Indian blood, while
the UKB requires the class of future members (i.e., all those adopted
after 1949) to demonstrate 1/4 degree Cherokee Indian blood.

Because Cherokee Nation of Oklahoma never has reorganized under an
OIWA Charter and IRA Constitution, CNO cannot evade restrictions under
the Act of 1906 preventing Cherokee Nation from adopting new enrollees,
or a new roll. The 1947 Act required those claiming descent from
Cherokee Nation to demonstrate that descent by proving lines tracing
from persons on the final Dawes Commission Roll of Cherokee Nation. The
UKB are not similarly restricted, because the UKB is not part of or
subordinate to Cherokee Nation of Oklahoma or subject to the authority
of CNO's Principal Chief. Cherokee Nation of Oklahoma contends that its
reliance upon the Dawes Commission Roll to determine Cherokee descent
and its registration of Cherokee Dawes descendants is as good as the
formal adoption of a Roll, for the purposes of proving dual affiliation
of UKB members; but the Dawes Roll is not the UKB Base Roll. CNO never
adopted any new Roll, or even updated the Cherokee Dawes Roll, which
closed on 4 March 1907. When the last of the Cherokee Dawes Roll
enrollees dies, the closed Roll will be vacant. CNO never provided for
formal adoption of any UKB members individually or corporately, as
members of an adoption class, as CNO did in the case of the Delaware
Dawes enrollees. Therefore, looking to the precedent of Secretary Manuel
Lujan's San Juan Southern Paiute determination (1989), like the Navajo
Tribe in the early 1980s, CNO today has no real tribal roll, except for
the original Cherokee Dawes Roll.

In attempting to comply with the terms of the 1984 P. L. 93-638
Enrollment Update Grant, GO8G14204002, the Band's Registrar initially
requested the Department's permission to rely on the 1907 Cherokee Dawes
Commission Roll for information. The Band lacked access to their own
enrollment records, the original copies of which had been in Federal
custody since 1950.(Letter, 9 January 1985, Jane E. McGeisey, Registrar,
United Keetoowah Band, to BIA, Tahlequah Agency, re: "Updating from 1949
Base Roll") This letter is the only plausible source we know for the
allegation that the United Keetoowah Band ever was substantially out of
compliance with the terms of the 1984 P. L. 93-638 Grant, although the
Band resolved the problem by relying primarily on the 1949 United
Keetoowah Band Base Roll. The Department's response was unambiguously
clear in saying that the United Keetoowah Band's Base Roll is not, and
cannot be, the 1907 Cherokee Dawes Commission Roll:

A memorandum from the tribal registrar is being returned to you due
to non-compliance with the present grant. You are locked in with
the 1949 base roll as required by the terms of the present grant.
This situation can be cleared up with the Muskogee Area Office
Tribal Operations staff when they are assigned for technical
assistance to assist the United Keetoowah Band in the enrollment
process shortly.(Letter, 23 January 1985, Acting Superintendent
Cecil Shipp, Tahlequah Agency, Bureau of Indian Affairs, to Chief
John Hair, United Keetoowah Band; emphasis added)

Upon being assigned to supply technical assistance to the Band, the BIA
Muskogee Area Tribal Operations staff should have supplied the United
Keetoowah Band's Registrar with access to, if not copies of, the
materials in the 1949 United Keetoowah Band Roll Card File.

Correspondence in the NARA, Washington, D. C., shows that the BIA
took custody of the 1949-1950 Card File supporting the United Keetoowah
Band's 1949 Roll in 1950. However, the Band was unable to find or use
these materials in compiling the enrollment update, and the BIA made no
disclosure to the Band regarding the location of the Card File. For
records on receipt and storage of records relating to the enrollment and
reorganization of the United Keetoowah Band, see generally: Central
Classified Files of the BIA, Department of the Interior. Box 330.
Accessions 57A-185. Records for 1948-1952. Cherokee Nation. 00-219
(010.-020.; 050.-059., Box # 12), File # 43292; originally in Box # 36,
Accessions 56A-588, 1-58, 14/46:49-1, 1946. Transmittal letters of Area
Director W. O. Roberts, Five Civilized Tribes, attest to the receipt and
archiving of these materials.

Between November 1984 and March 1986, UKB enrollment staff and
members of the UKB Tribal Council compiled a list of all members who had
met the membership requirements in effect at the date of each individual
member's enrollment, including those on the 1949 Roll. Lacking the 1949
Card File, the Band replaced applications for all 1949 enrollees, as
well as all enrolled since them whose file jackets were incomplete,
defective or missing. The Band verified which members were 1/4 degree
Indian blood or more, for whom current addresses and other information
was absent, or whose status as active members was otherwise uncertain.
The enrollment staff updated all files and compiled two final lists of
current members as of 1986, including the most current information
regarding residency, marital status and the like. The project staff also
compiled information on deaths since the last enrollment update.

At the end of the project, the Band prepared a current (1986) Roll
of full members in good standing confirmed by the Council to be of 1/4
degree Cherokee Indian blood or more. The Band approved a separate list
including Associate or Honorary members, and full members who at one
time had been in good standing but whose files still were incomplete or
deficient at the end of the Grant. Some files were impossible to update
despite good faith efforts by the staff and Council (due to the members'
failure to respond to inquiries and supply a current address, or due to
uncertainty whether the persons even were alive). Some Associate Members
enrolled since 1949 moved to the 1986 list of Full Members in good
standing, due to blood quantum clarifications. The final count from the
enrollment office was 1376 UKB 1949 members. Of the 1949 files, 764 were
amended or updated, either by revised application or proof of demise.
The new total, including the 1949 Base Roll and 1986 Current Roll, was
6,050. The UKB completed the 1949 United Keetoowah Band enrollment
update, and the Tribal Council certified the enrollment update and the
new 1986 Membership Roll on 15 March 1986.

The Band transmitted the updated 1949 Roll, the newly approved and
duly adopted 1986 Membership Roll, and the Final Report of P. L. 93-638
Grant G08G142002 to the BIA's Muskogee office as a deliverable on 16
March 1986. The Band submitted these records to Federal District Court
with a cover note from the BIA Muskogee Area Office, in the course in
litigation in 1987 in Cordelia Tyner, a/k/a/ Cordelia Tyner Washington,
and the United Keetoowah Band of Cherokee Indians v. State of Oklahoma,
ex re., David Moss, District Attorney and David Moss, individually; M.
Denise Graham, individually, No. 87-2797, U. S. D. C., N. D., Oklahoma.,
when the State subpoenaed a copy of the Band's tribally-certified roll.
After the completion of the enrollment project, a series of burglaries
and incidents of vandalism occurred at the UKB headquarters in
Tahlequah, resulting in damage to or destruction of some files and other
property. However, all members' files predating 15 March 1986 had been
certified already as to their status as of that date. Also, increased
security at the tribal offices and continuing updating of files in the
course of conversion of the enrollment system to automation has improved
record-keeping.

Finally, in 1990, after a systematic review of the United Keetoowah
Band's enrollment and membership files (and a comparison of those data
with the Cherokee Nation of Oklahoma's data), the BIA Muskogee Area
Office confirmed, that more than 3,000 members of the United Keetoowah
Band, including its Base Enrollees, never were registered with Cherokee
Nation of Oklahoma, and therefore never had any form of dual affiliation
with that entity. Some 4,700 UKB members either never voluntarily
registered with Cherokee Nation of Oklahoma, or once were registered
(voluntarily or involuntarily), but subsequently voluntarily
relinquished their CNO registration. Since 1950, the UKB has continued
to add to its open Roll, and in 1990 adopted a new Enrollment and
Membership ordinance, which as amended, continues in effect. Since 1990,
over 450 enrolled members of the Band voluntarily have relinquished
their affiliation with any other Indian entity. Hundreds of the original
UKB members and Dawes enrollees who had registration or membership in
CNO have died. On 24 July 1992, Rosella C. Garbow, Muskogee Area Tribal
Operations Officer, declared:

This is to certify that records created in 1985 show that the
United Keetoowah Band of Cherokee Indians in Oklahoma has
approximately 4,700 enrolled members residing within their service
area.

UKB members have continued to relinquish their affiliation voluntarily
with any other federally-recognized tribe since that date. The 1986
United Keetoowah Band Roll, completed during the P. L. 93-638 grant, was
known to be an official Tribal Roll for all purposes, duly adopted by
the Tribal Council, and authenticated by the BIA, within the meaning of
Federal Indian Law, in 1991. It is up-to-date, and there are regular
monthly additions through adoption, and clarifications of exclusive
affiliation through relinquishment from Cherokee Nation of Oklahoma.

Regardless of Dawes descendency, it is the policy of the United
Keetoowah Band of Cherokee Indians in Oklahoma that all lineal
descendants of the 1949 Base Roll and current roll are automatically
eligible for membership in the Band. The UKB hoped that the enrollment
update and other status clarification efforts would result in separation
of their population from CNO's, and would lead to the development of a
UKB land base and separate programs. However, a separation of the two
populations required the cooperation of CNO, and that was impossible for
the UKB to obtain. As a result, the UKB must continue to finance
litigation to obtain a clarification of their political and economic
rights. In January 1993, the UKB Council has asked the Secretary to
convene a secretarially-supervised Federal election to amend the UKB
Constitution, requiring 1/4 Cherokee blood and exclusive enrollment in
the UKB as qualifications of future membership, while requiring current
members to relinquish affiliation in any other tribe by a set date.

Having reviewed the history of the UKB in brief, the reader should
perceive readily the problems with Mr. Ron Eden's testimony to
Congressman Aucoin's committee in April 1991 [at the U. S. House
Interior and Insular Affairs Committee Hearings on 101-116 on FY 1992
Interior Appropriations, United Keetoowah Band of Cherokee Nation (11
April 1991)]. The hearing record contained a brief discussion of the
BIA's reasons for moving to rescind the 16 January 1980 Letter of
Assistant Secretary Forrest Gerard. Gerard's policy prevented separate
services and land acquisition for the United Keetoowah Band and the
Creek Tribal Towns. The speakers commented on the autonomous status of
the United Keetoowah Band organized under the 1934, 1936 and 1946 Acts.
Chairman Aucoin then cited what purported to be the Department's own
long-standing determination that the Band had failed to carry out its
contractual obligations under one P. L. 93-638 grant. Realizing that
Eden was loath to agree that the Band was unrecognized or did not
deserve recognition, Congressman Aucoin suggested that notwithstanding
other law or equities, the Band did not deserve a chance to contract
services for the benefit of the Band:

Just one second, Mr. Eden. In 1980, looking at Mr. Synar's
background information, he says on page 4 of his background paper
that, "In 1980, upon reviewing a funding request from the UKB, the
Department of the Interior issued the following policy." This is
not the full quote but the conclusion of the quote:

There is no justification for contracts and/or grants with UKB
to provide the same services to those portions of the Cherokee
Nation which would be served under the Nation's contracts
and/or grants. The only funding the BIA issued was a 1984
grant of $70,000 to help the UKB establish a tribal roll and
identify its unique service population. To date, however, the
BIA has concluded that the UKB has failed to accomplish either
task.

What about that?
Mr. Eden. Correct.
Mr. AuCoin. Those are the Department's own words in 1980.
Mr. Eden. Well, that is the policy that we're talking about as a
result of the membership of the Cherokee Nation and the Keetoowah
Band having the same enrollment criteria and traced to the same
base roll. That was the reason that essentially the Gerard policy
was put in place.
Mr. AuCoin. Why did you change the policy then?
Mr. Eden. Well, we started out changing the policy because of
another tribal issue; namely, that the Creek towns did not want to
continue receiving their services from the Creek Nation.[U. S.
Congress, House Interior and Insular Affairs Committee Hearings on
101-116 on FY 1992 Interior Appropriations, United Keetoowah Band
of Cherokee Nation (11 April 1991); emphasis added]
The date "1980" appears several times in this testimony, always alluding
to a finding of the Department supposedly made that year regarding the
Band's competency to carry out contractual obligations. Eden twice
expressly confirmed the existence of that determination in "the
Department's own words." Eden did not address the discrepency between
the date of the alleged negative "finding" and the date the grant was
awarded, much less admit the "finding" never existed. The "finding" was
a citation in Cherokee Nation's briefing materials supplied to the
Committee and the BIA. What is most surprising is that evidently, no one
at the hearing noticed the falsehood due to a strictly "ends-oriented"
agenda.

Recall Muskogee Area Tribal Operations Officer Rosella C. Garbow's
24 July 1992 finding that the UKB has an Oklahoma resident population,
and service area population, of 4,700, of whom nearly 4,000 now are
exclusive UKB members. The Band received Ron Eden's 24 August 1992
determination as Acting Assistant Secretary that the UKB is an
autonomous, federally-recognized American Indian Tribe, entitled to
separate services and land acquisition in Oklahoma. The alleged "1980
decision of the BIA" only would be significant -- if it existed --
because it purported to reflect on the question whether the Band
deserved to serve its own needs, or whether the Band and its members
should be compelled to rely on Cherokee Nation of Oklahoma for programs
and services. The implication is that the Band was incapable of meeting
contractual obligations. The alleged BIA determination obviously could
not have been a 1980 "decision" by the Department of the Interior on the
UKB's ability to provide satisfactory performance on a 26 November 1984
P. L. 93-638 grant.

The purpose of the 1984 grant was not to enable the Band to
"identify [the UKB']s unique service population," simply by declaring
the roll exclusive, once complete. The purpose of the grant was to allow
the UKB to update and verify the contents of individual members' files,
in order to correct the 1949 Base Roll and to update the current roll so
that the Band could identify its exclusive membership.(Letter, 24 July
1992, Area Tribal Operations Officer Rosella C. Garbow TO WHOM IT MAY
CONCERN) Without additional clarification from the records of CNO
registration, as confirmed by the BIA after the completion of the
project, identification of the unique UKB service population (comprised
of those who never had been citizens of any other recognized tribe, and
who had relinquished any CNO status) would have been impossible.
Identifying the UKB's unique population has continued to be challenging
since 1986, because CNO routinely re-registers UKB members who
relinquish CNO registration, without their consent or knowledge. CNO now
requires UKB members to "show good cause" and imposes a 180-day waiting
period before honoring relinquishments. With people supposedly clamoring
to register with CNO and over 150,000 on the CNO registry, it is
amazingly difficult for UKB members to prevent CNO from registering
against their will.

Apparently, Congressman Synar's briefing book did not contain a
copy of the P. L. 93-638 contract letter to the UKB, correspondence and
reports generated during the project, or the Band's voluminous Final
Report on the Grant, because that document would have shown the purpose
of the Grant and its successful completion. The BIA and Congress ignored
the Band's submission of the Final Report, the amended 1949 Base Roll
and updated 1986 Roll. Congressman Aucoin concluded with a final
question:

[A]ssuming no enactment in 1946 or any other year allowing the UKB
to organize under section 3 of the Oklahoma Indian Welfare Act,
would or could the BIA recognize the UKB as a new tribe or band?
Amplify that for the record because obviously Mr. Synar believes
that there may be the need for a record to be laid and perhaps
legislation to be amended.[U. S. Congress, House Interior and
Insular Affairs Committee Hearings on 101-116 on FY 1992 Interior
Appropriations, United Keetoowah Band of Cherokee Nation (11 April
1991)]

The only item the BIA used to "amplify the record" was the Kirgis
Keetoowah -- Organization as a Band Opinion of 29 July 1937. The
Department found it inconvenient to cite Acting Secretary of the
Interior Abe Fortas's finding, supporting the plan to allow all the
various factions of the Keetoowah Indians to reunite and reorganize as
a Band.(Senate Report 79 Cong., 2nd Sess., No. 978, 1946, Testimony of
Acting Secretary of Interior Abe Fortas; see also, House Report 79th
Cong., 1st Sess., No. 444, 1946 and House Report 79th Cong., 2nd Sess.,
No. 2705, 1946) The Department conveniently forgot that there already
was a Federal Charter for the Keetoowahs in 1905. The BIA and Congress
refused to refer to records of the Organization Field Agents from 1937
to 1946, or to the legislative history of the 1946 Act, that showed why
and how the UKB was reorganized. The Department ignored the 24 April
1944 determination of Assistant Commissioner of Indian Affairs for
Tribal Relations Branch D'Arcy McNickle, which recommended that the
Department jettison the Kirgis Opinion as fatally defective. It is worth
the reader's while to review this document, so it is reproduced here in
its entirety. It was this determination that reflected the Secretary's
views in recommending the passage of the 1946 Act as a measure
clarifying the status of the UKB:

In 1937 the Solicitor's Office ruled that the Keetoowah
Society of Cherokee Indians was not a band for the purpose of
organizing under the Oklahoma Indian Welfare Act. The opinion
characterized the organization as "a secret society representing
the most conservative portion of the Cherokee Indians", and having
for its objective in the beginning, opposition to slavery, and
subsequently opposition to allotment. The Solicitor's decision was
based largely on information obtained from a report compiled by
Charles Wisdom, an anthropologist attached to the Indian Office.
Mr. Wisdom in examining into Cherokee history made these
conclusions: (1) That while the name Keetoowah was derived from an
ancient town, there is no historical connection between the society
and that original political group; (2) That there exists only a
cultural and mystical relationship between the two.
Using the foregoing information the Solicitor, in rejecting
the Keetoowah Society's request for recognition as a band, held
that a band is a political body, having the functions and powers of
government. Likewise, it must possess a common leadership,
concerted action and a well-defined membership; moreover, the
membership is perpetuated primarily by birth, marriage and
adoption. The opinion drew a distinction between the Keetoowah
Society and the Creek towns, holding that the latter were
independent units capable of political action and particularly the
initiation of hostile proceedings; not only were they the
functioning political subdivisions of the Creek Confederacy or
Nation, but they were the original independent units of government
of the Creek Nation. The Solicitor went on to say that "neither
historically or actually" was the Keetoowah group a governing unit
of the Cherokee Nation but rather it was a society of citizens
within the Nation with common beliefs and aspirations.

This argument of the Solicitor's Office accepts as fact a
fiction which, for its own reasons, the United States Government
has insisted on treating as a fact for more than a hundred years.
There was not aboriginally a Cherokee Nation. There were among the
Cherokee people a number of towns and there was an elaborate
interrelationship between these towns, as there was also
intertribal relationships as between the Cherokees and the various
tribes in the Tennessee valley and along the Eastern Seaboard. The
Cherokee people were located in four general areas, referred to as
the Lower Settlements, the Valley Settlements, the Middle
Settlements and the Overhill Settlements. In a recent study of the
Cherokee s published in Bulletin 133 of the Smithsonian Institution
by Dr. William Harlen Gilbert, Jr. (1943), the following passage is
found:

The central area of the Cherokees, comprising the Kituhwa
(Middle) and the Valley Settlements, was the heart of the
tribe.

Later, during the Revolutionary course [and] after the removal in
1838 only fragments of the people remained. Quoting again from
Gilbert:

By far the largest and most important of the remnantal
Cherokee groups after the removal were those clustering around
the juncture of The Ocona and Tuckaseegee Rivers near the old
settlement of Kituhwa in the heart of the old Middle
Settlements.

Moreover, the term "Kituhwa" (Keetoowah) is used to designate
one of the two dialects still spoken in the Eastern Cherokee area.

The foregoing information lends considerable color to the
contention of Mr. Boudinot, namely, that the term "Cherokee" never
should have been taken as a tribal name; that in actuality
"Cherokee" is derived from "Tsalagi" which may or may not have been
used by the Cherokees themselves -- Boudinot claims that it was a
place name of minor importance, not properly a tribal designation.
Mooney's article in the American Handbook observes that the people
also called themselves "Ani-Kituhwagi" meaning "People of Kituhwa",
which he describes as "one of their most important ancient
settlements". Mooney also points out that the Delawares and other
tribes called them "Kittuwa".
At the very least, then, the term "Keetoowah" was originally
the name of a Cherokee town, perhaps the most important of the
ancient towns; and in its broadest implication it may be that the
term is a more appropriate cognomen for the entire people. Taking
it at its least implication, Keetoowah is, historically at least,
on a par with the Creek towns in that it was originally an
independent unit of government. Hence the Solicitor is wrong in
saying that Keetoowah was not historically a governing unit.
Next it remains to explore whether the original significance
of Keetoowah, as being somehow associated with the heart and the
center of the Cherokee people, went with the people when they were
expelled from the original homeland. The Solicitor assumes that the
contrary was true: that the term was only resurrected in the
stressful days before the Civil War when the Cherokee people found
themselves split on the slavery issue, and that it was again
invoked when the fact of tribal dissolution approached. As I point
out above, the Solicitor characterizes it as a secret society. The
question deserves more research than it has had up to now. Emmett
Starr in the "History of the Cherokee Indians" (quoted by Wisdom),
presents facts which indicate that Keetoowah was a living thing and
that it went with the people. Writing about Red Bird Smith, who was
the moving spirit in the founding of the Night Hawk Branch of the
Keetoowah organization, Starr points out that Red Bird was born
near Fort Smith, Arkansas, in 1859, while his parents were enroute
to Indian Territory, and that his father, Pig Red Bird (the name
Smith was added by white people), was an ardent adherent of the
ancient rituals and customs, which he taught to his son. Red Bird
then went on to become one of the Chief expounders of the religious
beliefs and moral codes of the old life. When the Keetoowahs
drafted their constitution in 1858, they did so not as a private
and exclusive society, one feels, but as a group of trustees might
organize in order to keep intact the property and the spiritual
estate of the people facing peril. Previously, there had been no
occasion for such formal organization because Cherokee laws and
customs had continued to function. By 1858 many non-citizens had
come into the Nation, factionalism became strong, and it was
necessary to adopt measures in self-protection. The Keetoowahs even
adopted a flag in the heat of the Civil War, around which they
rallied support for the cause of the North. In February 1863 they
abolished slavery unconditionally and forever (Mooney). In all of
this that acts as a nation, certainly, not as a private, voluntary
association.
The record, incomplete as it is, seems clearly to indicate
that the Keetoowah group, whether we call it a society, a faction,
or a band, did exercise independent political action, even to the
point of initiating hostile proceedings. It has been a formally
organized body at least since 1858, with representative districts,
and for many years it had a common leadership. The fact that the
original body split into factions ought not to persuade our
judgment as to the true nature of Keetoowah. At present there is in
evidence a real desire on the part of all factions to reunite in a
common organization.
In considering the status of the Keetoowah association, one
ought not to lose sight of the total history affecting the Cherokee
Indians. As I pointed out earlier, the United States government
insisted on treating with the Cherokee Nation when there was no
such entity, and more than there ever was a Creek Nation. The
pressures exerted by the United States Government resulted in
producing numerous counterpressures within the Cherokee society.
Those elements within the tribe who were compliant and willing to
concede the demands made by the Untied States in time were
recognized as comprising the corpus of the tribe; those who
resisted were treated as a malcontent minority. At a most critical
juncture in Cherokee history, on January 31, 1899, a general
election was held for the purpose of accepting the Dawes Commission
terms. The Keetoowahs, that is to say, the Indian element off the
Cherokee Tribe, refused to participate and as a result their
interests were defeated by 2015 votes. The membership of the group
was more than sufficient to carry the election if they had mustered
their full strength. From this indication we gather that at that
time the Keetoowahs actually represented a majority within the
tribe.
The Keetoowahs themselves have never accepted the view that
they are not "the people' and that they do not speak for the real
interests of the ancient Cherokee world. They continue to this day
to speak and act in all patience as if the decrees of the courts
and the acts of the Congress had never been. But they are still
puzzled at the failure of the United States to understand the
simple thing they have always said, namely that Keetoowah is
Cherokee and should never have been considered anything else.
I propose that we bring this matter again to the attention of
the Solicitor and try to get a revision of the 1937 opinion.
(Position Paper on the UKB, 24 April 1944, D'Arcy McNickle)
In light of this memo, it is clear that the 1946 Act that followed was
not a Federal acknowledgment bill at all. As history shows, the
Secretary simply abandoned the Solicitor's Opinion and promoted status
clarification legislation. Congress even accepted without question Ross
O. Swimmer's bizarre story that Congress recognized the UKB in order to
accomodate Principal Chief W. W. Keeler in some way, although Keeler's
appointment to the Executive Committee of Cherokee Nation came two years
after the passage of the 1946 Act. Keeler was not Principal Chief of
Cherokee Nation until several months later, when the UKB reorganization
process was virtually complete.
Disregarding all legislative precedent and the 100th Congress's
repudiation of termination, Congress passed Amendment 86 to the FY 1992
Interior Budget, agreeing to delete funding for the United Keetoowah
Band of Cherokee Indians in Oklahoma, providing further in the
legislative history that until such time as Congress enacts contrary
legislation, Federal funds should not be provided to any group other
than the Cherokee Nation within the jurisdictional area of the Cherokee
Nation. Unless the UKB is able to move entirely out of Oklahoma, the
result was this technically deficient language, which nonetheless
represents the express legislative termination for the purposes of
eiligibility of the first tribe since 1962:
. . . until such time as legislation is enacted to the contrary,
none of the funds appropriated in this or any other Act for the
benefit of Indians residing within the jurisdictional service area
of the Cherokee Nation of Oklahoma shall be expended by other than
the Cherokee Nation, nor shall any funds be used to take land into
trust within the boundaries of the original Cherokee territory in
Oklahoma without the consent of the Cherokee Nation.
As Acting Assistant Secretary, Ron Eden issued a determination on 24
August 1992 that the UKB is entirely separate and autonomous from CNO,
and is recognized as a properly organized OIWA and IRA tribal government
that neither has been terminated nor barred from the Federal-Indian
relationship.
Meanwhile, the nebulous status of CNO continues to receive blanket
endorsements from the BIA and summary approvals of Congress. With the
approval of the Secretary, the Councils of CNO and the Eastern Band of
Cherokee Indians of North Carolina adopted a concurring resolution
without notice to the UKB in August 1992 that they are the sole
federally-recognized Cherokee tribes. Principal Chief Mankiller
announced in January 1993 to all U. S. governors that the UKB is an
unrecognized Indian group. While claiming that she has made the
resolution of differences with the UKB a personal and political
priority, Mankiller has campaigned for the express legislative
termination of the UKB. CNO has signed a new self-governance program to
take effect in October 1993, and enjoys piecemeal restoration of the
inherent sovereignty of Cherokee Nation under the 1906 Act, based
largely on the misconception that the CNO is organized as a democratic
OIWA and IRA government. In a Letter, 7 July 1993, from John Ross, Chief
Spokesman, to Rosella C. Garbow, Director, Training and Operations, BIA,
Muscogee Area, asking for clarification on the following points:
1. Has the Cherokee Nation of Oklahoma ever proposed having
an O. I. W. A. election to adopt a Charter?
2. Does CNO claim to have a Charter?
3. Does CNO claim to have a "blanket" concurring resolution
from the UKB for CNO use of the UKB Charter?
Rosella C. Garbow initialed the memo and advised that the answer to all
three questions was, "No." There will be no level playing field between
the CNO and the UKB, as long as Congress and the BIA authorize CNO's
continuing attack on the UKB's sovereign interests. If the fate of the
UKB serves as precedent, no other small recognized tribe is safe.
This concludes the UKB's formal response to CNO's 1991 demand that
the UKB submit to the Federal acknowledgment process to regain its
status as a federally-recognized Tribe. The UKB cannot submit to the
acknowledgment process, because according to Mr. Peter Taylor, formerly
of the Senate Committee on Indian Affairs staff, the UKB is de-facto
terminated, or forbidden to participate in the Federal-Indian
relationship, at least within the original territory described in the
1950 UKB Charter. While refusing to serve the UKB or put lands in trust,
or even to finance an IRA election to amend the UKB Constitution due to
the effect of Amendment 86 in P. L. 101-116, the BIA claims that the UKB
is non-terminated; and since the UKB still is listed as federally-
acknowledged, the UKB cannot petition for acknowledgment because the
Band is recognized. However, the Band is ineligible for ANA funds to
document a Federal acknowledgment petition because ANA/IHS presumes the
UKB is terminated and barred from recognition. CNO declares now that the
UKB does not exist, and that it never did, so that the UKB never was
recognized, and never was terminated. Therefore, the legislative
termination of the UKB is the termination that never was, and represents
the weirdest paradox at Federal-Indian law: unrecognized/recognized,
non-terminated/terminated. A quantum physicist couldn't make sense of
this quadruple negative. But any school child can see there's a naked
emperor in there somewhere.
Congress, tribes, and the American people can learn important
lessons from the protracted travail of the UKB. The UKB is a
congressionally recognized tribe, while CNO is an administratively
condoned, legislatively diminished tribe unorganized within the meaning
of OIWA and IRA. In the interests of fair play, future claims of those
attacking tribal sovereignty should receive far more scrutiny. Claims
that a particular tribe's sovereignty can still be suspect after it has
reorganized should be the subject of thorough investigation. The reader
may be sure that the UKB will pursue exactly such an investigation in
this case. The United Keetoowah Band of Cherokee Indians in Oklahoma
offers the following documented briefing as the Band's only available
recourse in view of Cherokee Nation of Oklahoma's campaign of political
libel. Supporting documents are at the UKB Office, at 2450 S. Muskogee
Ave.(P. O. Box 746), Tahlequah, OK 74464 (918) 456-5491.

THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA AS A MODERN
AUTONOMOUS TRIBAL ENTITY

This narrative reviews the historical events and associated
archival documents pertaining to UKB reorganization, with emphasis on
the period from 22 March 1934, to 3 October 1950. A brief historical
overview of the Keetoowah Indians is appropriate here. This preliminary
section draws heavily from Charles Wisdom's ethnography, The Keetoowah
Society of the Oklahoma Cherokees.(14: I, in *: IV; hereafter, 14: I)
Oklahoma's Senator Elmer Thomas blocked the application of the
Indian Reorganization Act to Oklahoma Indians based on his thinking that
the IRA only should apply to reservation Indians. He and Representative
Will Rogers sponsored the Oklahoma Indian Welfare Act, allowing allotted
Indians in Oklahoma to have many of the same benefits.(Francis Paul
Prucha, The United States Government and the American Indians, Lincoln:
University of Nebraska Press, 1984, Abridged Ed., p. 327; Leeds 1992:
21) Ben Dwight, Organization Field Agent for the Five Civilized Tribes
Agency, and the anthropologist Dr. Charles Wisdom, employed also with
the BIA, met with the Keetoowah Society, Inc., on 5 May 1937, in order
to determine whether the group could be organized as a tribe. Wisdom
remained in the area, contacting the range of Keetoowah groups.(Leeds
1992: 22; Leeds and others have confused the Nighthawks with the
Keetoowah Society, Inc., in assuming that Wisdom's primary contacts were
with the Redbird Smith faction, instead of with the Corporation)
Although the Wisdom study had an important role in UKB organization
from the date of its submission to the BIA, it is dangerous to assume
that the report was objective or necessarily accurate. Wisdom signed off
as "Collaborator" rather than "author." Indeed, considering the extent
to which Wisdom obviously relied on Vice-Chief Levi Gritts of the
Keetoowah Society, Inc., as a source, one must view the entire document
with a critical eye, concluding that Wisdom was little more than a
"compiler" of the observations of Levi Gritts. Wisdom no doubt wrote his
report in haste, easily falling into the error of quoting Gritts
verbatim without question and with little comment, even when Gritts
openly berated his own competitors for Keetoowah leadership. Wisdom
contributed few comments or original observations of any substantive
value. The Wisdom report seems to be little more than a compendium of
scholarly quotations and the thoughts of Levi Gritts. However, the
narrative remains an important basic source.
James Mooney observed in his seminal report, "The Myths of the
Cherokee,"(11: I) that the name "Keetoowah" derives from "Kitu'wa," the
name of an extremely influential, ancient historical sacred town of
refuge called Keetoowah once thrived in North Carolina, "on Tuckasegee
River, just above the present Bryson City, in Swain County, North
Carolina:
It is noted in 1730 as one of the "seven mother towns" of the
tribe. Its inhabitants were called Ani'Kitu'hwa'gi (People of
Kituhwa), and it seems to have exercised a controlling influence
over those of all the towns on the waters of Tuckasegee and the
upper part of Little Tennessee, the whole body being frequently
classed together as Ani'Kitu'wha'gi. The dialect of these towns
held a middle place linguistically between those spoke on the east,
on the head of Savannah, and to the west, on Hiwassee, Cheowah, and
the lower course of Little Tennessee. In various forms the word was
adapted by the Delawares, Shawano, and other Northern Algonquian
tribes as a synonym for Cherokee, probably from the fact that the
Kituhwa people guarded the Cherokee northern frontier. In the form
Cuttawa it appears on the French map of Bougondy in 1775. From a
similarity of spelling, Schoolcraft incorrectly makes it a synonym
for Catawba, while Brinton incorrectly asserts that it is an
Algonquian term, fancifully rendered, "inhabitants of the great
wilderness." Among the western Cherokee it is now the name of a
powerful secret society, which had is origin shortly before the War
of the Rebellion.(14: I)
The Keetoowah people represented a "Mother Town" of the whole Cherokee
Tribe or culture, resembling in character the Talwas, the Tribal Towns
of the Creeks.(84: I)
The Mother Town of Kituhwa was northwest of Hopewell, site of the
Treaty of Hopewell (28 November, 1785, 7 Stat. 18). The Kituhwa towns
constituted a significant number of the signers of that treaty. The
treaty recognized the "respective tribes and towns" of "all the
Cherokees" as autonomous entities. They remained faithful to their
treaties through Removal and the Treaty of 1866.(142: II) Traditional
Keetoowah government differentiated little, if any, among governmental,
legal, or religious actions. The late efforts of Cherokee Nation of
Oklahoma to brand the UKB as simply a religious cult, voluntary club, or
secret society evade the truth regarding the continuity of the
governmental body of the Keetoowahs.
After the creation of a Cherokee Nation Constitution, the Keetoowah
Band still was a loosely identifiable population, linguistically and
culturally Cherokee, whose ancestors had called themselves Keetoowahs
before the creation of the earliest Cherokee Nation constitution. Before
1820, the Cherokee people were a loose confederation of villages
centered on several major towns, to which the others were subordinate.
Clan affiliations, the Red (War)/White (Peace) government distinction,
and other factors were important organizing features of the society,
more so than any "national" sense. These factors also tended to
cultivate a strong, even jealous sense of local autonomy and repellant
inter-town rivalry, which not infrequently resulted in angry feuds and
truly homicidal stick-ball games. Wisdom found that:
the Keetoowahs were in ancient times the most conservative element
of the Cherokee Tribe, being one of the seven "mother towns" with
a chief fire and a number of subsidiary fires belonging to it, and
that a short time before the Civil War the name was adopted by the
conservative element of the Oklahoma Cherokee who organized
themselves on the basis of the native culture and traditions in an
attempt to arrest the process of amalgamation with the social,
political, economic, and religious organization of the Whites,
which had gone on rapidly since the Removal from the east. Thus,
the Keetoowahs originated primarily to present a united front
against the "innovating tendencies of the mixed-bloods" and against
the encroachment of the Federal Government and the Whites in
general, and secondarily over issues involved in Civil War
politics.(14: I)
Keetoowah Indians do not constitute an identified group, society, town,
or division, either among the Eastern Band of Cherokee Indians of North
Carolina, or among some forty other easteren groups claiming Cherokee
descent today. The Eastern Band of Cherokees of North Carolina show
little interest in reclaiming the site of the old Keetoowah town near
Bryson City in Swain County. An Obituary of John L. Springston, a
Cherokee politician, appeared in the Tulsa Tribune of 28 December 1928,
which recalled:
Back in Georgia from where the Cherokees originally migrated to the
Indian Territory in 1838 and 1839, the old Keetoowah group was
dying out as early as 1835. When the majority of the Cherokees were
brought west by General Winfield Scott, there was a great deal of
unrest and antagonism between the fullbloods and half-breeds, which
was only suppressed to a degree by the capable leadership of Chief
Ross.
From 1840 until a few years preceding the Civil War, the
friction was minimized, but along about [29 April] 1859 there was
a general upheaval and efforts at reorganization of the Keetoowahs
were made. Under the direction of White Catcher, a fullblood
Cherokee, who was captain of Springston's company during the war,
and assembly was called on the banks of the Illinois River in
September, 1858, to bring about a reorganization of the old group.
After considerable ceremonial and shaking of hands, the
Indians decided that they were as one, and Keetoowah was a reality
once more.(14: I)
The Keetoowah people in Oklahoma claimed descent from the culturally
conservative, mostly fullblood Cherokee element in the Old Cherokee
Nation after 1833. Clearly, the Western/Old Settlers saw themselves as
a nation distinct from the Eastern Cherokee (not to be confused with
today's Eastern Band); the "union" of the conservative, predominantly
full-blooded, Keetoowah Old Settlers faction with the Eastern faction
was forced and largely non-consensual.(11: I, and 68: I) Also, many,
though not all of the Keetoowahs who removed to Arkansas and Oklahoma,
were born in, or lived in North Carolina before the Removal. Wisdom
found that "a strong cultural and mystical relation certainly exists
between" the ancient Keetoowah band of the Carolinas and the Keetoowahs
of Oklahoma, "and in three ways":
First, the modern Keetoowahs consider themselves, and are, the
cultural descendants of the ancient Keetoowah band, and they feel
themselves to be the only Cherokees left who are making any attempt
to preserve the ancient Cherokee culture. Second, both groups
represent the most conservative elements among the Cherokees, and
have consistently opposed all the attempts on the part of
outsiders, whether White or Indian, to break down their aboriginal
cultural patterns. Third, the modern Keetoowahs feel that a strong
mystical relationship exists between themselves and their ancient
prototypes, and all the rest of the natural and supernatural world
in general. This is especially shown in their constantly reiterated
statements to the effect that "Keedoowah" is a phenomenon that has
existed almost since the beginning of time and will exist forever,
and that the name refers to something more than a mere collection
of homogeneous individuals.(14: I)
In 1845, in the face of conflicts among the Eastern Ridge Party, Eastern
Ross Party, and Western Old Settlers, President Polk urged division of
Cherokee lands and the formation of two governments. Howard Q. Tyner's
The Keetoowah Society in Cherokee History is an important source the
Civil War history of the Keetoowahs.(19: I) The efforts of the
Keetoowahs to keep the Cherokees in the Union failed when the Cherokee
government aligned with the Confederacy on 7 October 1861; and in the
aftermath, the Keetoowahs were penalized along with the rebels, losing
treaty rights and dignity. Reluctant participants in the Treaty of 1866
(which nullified all previous U. S.-Cherokee treaties to the extent
their terms were inconsistent with the 1866 Treaty), the Keetoowah
representatives were forced into signing an insulting settlement, or
walking away. James M. Bell, one of the "southern" delegates, said, "I
think that the pin [Keetoowah] Cherokee themselves will kill their
delegates for giving away their country." In their efforts to maintain
traditional Cherokee cultural institutions and values, the Keetoowah
people among the Cherokee Nation carried a Keetoowah culture distinct
from generalized Cherokee Nation social and political life.
The "fires," or ceremonial grounds, of the "Original Keetoowah
Society," or "Nighthawks," were only three among the Keetoowah fires
remaining by 1937. Many -- and probably, most -- Keetoowahs also have
been practicing or nominal christians since 1858. An adopted Cherokee (a
non-Indian Southern Baptist minister, John B. Jones, the son of the
missionary Evan Jones) reportedly organized the Society among his
parishioners in 1858, though Budd Gritts wrote the Keetoowah Society's
constitution in 1858 and 29 April 1859, and revised it in 1860.
Some realignments occurred among the main factions, but the Civil
War and its aftermath reinforced many of the underlying philosophical
ties, distinctions and divisions, and these remain largely intact today.
Settlements separated the factions, with many of the Southern
sympathizers moving into the Canadian District and certain other
regions. Due to the influence of Evan and John Jones and their followers
and friends, and a party made up mostly of southern Cherokees, mixed
bloods, intermarried non-Indians and other "progressives," Louis Downing
became Head Captain of the Keetoowahs, and a candidate for Principal
Chief, and won the 1867 election. He then lost favor with many
Keetoowahs, though he remained Head Captain of the Society (Tyner 19: I,
pp. 56-59). Bud Gritts, Secretary of the Keetoowah Society, called for
a reorganization on 14 February 1876, in Saline District, where he was
elected Head Captain. The new constitution amendments affirmed Keetoowah
loyalty to the U. S., to the Cherokee government, and to treaties with
the U. S., and excluded or expelled "all who belonged to any other
organization." The "Nighthawk" Keetoowah Society itself, like the
Keetoowah Society, later banned its own members from participating in
church life or in other Keetoowah fires on pain of banishment, though it
continues to make unsubstantiated claims that the Keetoowah Society,
Inc., and the UKB factions all were "Nighthawk" splinter groups. In
1879, the Keetoowahs joined the Old Ross Party, including the majority
of Old Settlers, forming the "National Party," adhering to the old
values. They elected Dennis Bushyhead as Cherokee Chief in 1879 and
1883. Bud Gritts died, leaving a gap in leadership when the 1887
election came. The Keetoowahs decided, after the National Party lost
that year, to support Rabbit Bunch, who subsequently was elected and
served the Society as Head Captain until statehood. Wisdom concluded
that:
Sometime after the Civil War, the Society broke up into a
number of factions, dissension being caused over disagreement of
faith and on the relationship maintained with the dominant whites
and the Federal Government. Sometime before 1900 the whites in
Eastern Oklahoma far outnumbered the Indians, and due to their
constant insistence upon Statehood and their natural dislike for a
"foreign" government, the native government of the Five Tribes were
ceasing to function effectively. Also, by this time sufficient
intermarriage between whites and Indians had gone on to produce an
extremely large mixed-blood element. The latter clamored for social
and political identification with the whites and with the Federal
Government, and to this the full-bloods loudly objected. Thus,
before the end of the century, great dissension existed between the
Indians and the white settlers on the one hand, and between the
full-bloods and the mixed-bloods on the other. The breaking up of
the Keetoowah Society of full-bloods into opposing factions at this
time may be considered a manifestation of this dissension. Six
factions came into existence, each claiming to have its own program
and purpose for organizing, and each headed by a leader of greater
or less prestige.(14: I)
In their 20 November 1894 Report, the Dawes Commission commented:
The governments have fallen into the hands of a few able and
energetic Indian citizens, nearly all mixed bloods and adopted
whites, who have so administered their affairs and have enacted
laws that they are enabled to appropriate to their own exclusive
use almost the entire property of the Territory of any kind that
can be rendered profitable and available.(95: III)
In the case of Cherokee Nation, about 61 citizens had appropriated some
1,237,000 out of the whole 3,040,000 acres. The record of fraud and
corruption in Cherokee Nation was so awful that termination of the
government and division of the property seemed just. Tyner wrote (19: I,
pp. 65-67) that the Keetoowahs offered a:
"Plan for preserving in effect the continuity of the Tribal
relations of the full-blooded Indian" [that] provided that as many
full-bloods as desired might take adjacent allotments within an
area subject to the approval of the Dawes Commission and hold it as
a corporation for their joint use under communal title. Apparently
the proposal was not even considered at the time by the Federal
officials, but barely a generation passed until the whole machinery
of Indian administration was set in motion to bring about this
identical result,
through the OIWA and IRA.
The Keetoowah Society of 1858 became a progenitor of the various
factions that arose among the Keetoowah Indians. The Keetoowah Society,
Inc., was the direct successor to the Keetoowah Society, because the
Keetoowah Society only adopted a corporate form in 1905 without
materially altering its membership or purpose. In 1905, they realized
that upon the dissolution of Cherokee Nation, they would be at the mercy
of a Principal Chief serving at the pleasure of the President. Unless
the Keetoowahs had an organized government based on their pre-
constitutional mode of local government, there would be no entity to
prosecute claims regarding the Cherokee treaties, no one to protect
Cherokee interests, and no way of governing their internal relations.
They believed such a recognized body could benefit all Cherokee people.
Rabbit Bunch had served ably, but realized he was ill-equipped, lacking
formal education, to carry on these duties, and he nominated an educated
mixed-breed, Richard M. Wolfe, as Chief to succeed him (19: I, p. 85).
Realizing that Federal legislation would support the development of
incorporated governments for Indians, Wolfe sought to obtain legal
recognition of the Keetoowah Society organization as a government for
Keetoowah Cherokees, and petitioned for the only relief available --
corporate tribal status for the Keetoowah Council -- before U. S. Court
for Indian Territory at Tahlequah on 20 September 1905. The United
States Court for the Indian Territory Sitting at Tahlequah, in Special
Term, recognized the group as the Keetoowah Society, Inc.:
Whereas, RICHARD M. WOLFE, DAVE MUSKRAT, WOLF COON, DANIEL GRITTS,
FRANK J. BOUDINOT, J. HENRY DICK, and others have filed in the
office of the Clerk of the United States Court for the Northern
District of the Indian Territory, at Tahlequah, their Constitution
or Articles of Association in compliance with the provisions of the
law with their petition for incorporation under the name or style
of Keetoowah Society, Inc., they are, therefore, hereby declared a
body politic Corporate by the name and style aforesaid with all the
powers, privileges and immunities granted in law thereunto
pertaining."(19: I; Certificate of Incorporation, Keetoowah
Society, in Ex Parte Keetoowah Society, C. No. 592, 20 September
1905)
Webster's Third New International Dictionary (1961) defines "body
politic" as "the whole people organized and united under a single
political authority: a politically organized society: State."
The Keetoowah Society, Inc., then, was an organized body representing
the Cherokee people for certain purposes in the eyes of the Federal
government, in 1905.
From 1903 to 1917, W. C. Rogers had the appointment of Principal
Chief of the Cherokee Nation or Tribe, over the protests of Keetoowahs.
In 1905, the Keetoowah factions proposed a national election, but Chief
Rogers held that such an election was a pointless waste of money. The
National Council held an election anyway, and elected Frank J. Boudinot
(an attorney, and member of the Keetoowah Society, Inc.) as Principal
Chief. Secretary of the Interior Ethan A. Hitchcock refused to recognize
Boudinot, so Rogers continued as appointed Principal Chief until his
death in 1917.(19: I, p. 88)
The finalized Dawes Roll of 1907 included only 8,703 full-bloods.
Many had abstained or been absent during registrations. Others had been
disqualified due to various technical reasons. This was primarily a
Federal roll of 41,824 persons, including 27, 916 mixed-breeds, the
majority of whom were under 1/4 Indian blood, 286 whites and 4,919
freedmen.(32: I, p. 244) After statehood, the Keetoowah Society, Inc.,
safeguarded the welfare of Cherokees. They held an annual session
running for the duration of business to transact. They hired attorneys
to protect individual interests of Cherokees, and opposed granting
freedmen the right to participate in the division of Cherokee lands, and
prevented the payment of $500,000 to freedmen from the sale of the
Cherokee Strip.
In 1920, four factions of the Keetoowahs claiming to represent the
Cherokee people (the Keetoowah Society, Inc., the "Nighthawks," the
Cherokee Executive Committee and the Eastern and the Western Cherokee
Council), met at Tahlequah in a convention of Cherokees by blood to
obtain a popular election of a Cherokee Chief, namely Levi Gritts, to
replace the presidentially-appointed Chief and obtain a jurisdictional
bill from Congress that would allow them to file in the Court of Claims
against the U. S. government.(19:I, p. 81) The four groups elected a
Cherokee "Executive Council" which lasted for several years, but which
never obtained Federal acknowledgment as the representative government
of the Cherokee people.(19:I p. 89) In 1928, Levi Gritts succeeded one
of the Head Captains of the Keetoowah Society, Inc., and he began to
work to strengthen the society by making trips to Washington, D. C. to
obtain legislation beneficial to the Cherokee people. He strongly
advocated the Indian Reorganization Act of 1934, but due primarily to
the intervention of Senator Elmer Thomas, Oklahoma tribes were omitted
from participation in the IRA until OIWA passed in 1936.
In 1937, the Keetoowah Society, Inc., claimed a membership of about
7,000, including 4,500 full-bloods and 2,000 mixed bloods, and 500
intermarried, but they had had no enrollment update in years. In his
report, Wisdom quoted verbatim the official statement of the Keetoowah
Society, Inc., through their First Vice-President, Levi Gritts of
Muskogee:
The purpose of the organization was to protect their Cherokee
people, their lands and their form of government. . . . When the
Curtis Act was passed by Congress, the Keetoowah Society realized
that there would be a lot of unsettled Cherokee business and their
Cherokee Nation would be abolished. So they drafted a new
constitution and copied part of the old constitution, and secured
a charter from the United States Court. Their purpose was for this
to take the place of the Cherokee Nation to protect their unsettled
claims against the U. S. Government as well as determine who had
the rights to the Cherokee lands, money and other Cherokee
governmental property. The opposite Cherokee political party had
proposed in their platform that the rights of Cherokee lands, money
and other property would be distributed among all citizens of the
Cherokee Nation. . . . The Keetoowahs protested their rights as
being equal to Cherokees by blood except those who had been
enrolled at an earlier time of the Cherokee Nation. . . . During
the time of the Cherokee Nation it was politically organized, but
after the abolishment of the Cherokee Nation it became non-
political and they do not allow politics to enter into their
Society. [Note: Wisdom contradicts himself repeatedly on this
point.] They belong mostly in protestant churches. The Keetoowah
officers consisted of a President, Vice-President, Second Vice-
President, Treasurer, Secretary, Head Captains in each of the nine
districts, council from each district, twenty-seven in all. Each
local Keetoowah had an organization and were loyal to one another;
they assisted one another in case of sickness and in looking after
one another's homes. During the time of the Cherokee Nation it was
politically organized, but after the abolishment of the Cherokee
Nation it became non-political and they do not allow politics to
enter into their Society. They belong mostly in protestant
churches. As a whole, the membership consists of full-blood
Cherokees and mixed-blood Cherokees.(14: I)
Wisdom reached the following conclusions:
The council is composed of twenty-seven members, three being
elected from each of the nine districts of the former Cherokee
Nation. Meetings are held every two or three years in Muskogee, or
nearby towns, but these are attended by very few of the members, as
the organization seems to have lost any importance it may have once
had.(14: I)
Muskogee, incidentally, lies within the boundaries of the old Creek
Nation. The officers of the Keetoowah Society, Inc., in 1937 were:
Gabriel Taripen, President, Stillwell, Oklahoma
Levi B. Gritts, First Vice-President/ Acting Secretary, Tahlequah,
Oklahoma
James Cochran, Second Vice-President, Hulbert, Oklahoma
James W. Duncan, Sec.-Treas., Tahlequah, Oklahoma
Alex Johnston, Chairman of the Council, Tahlequah, Oklahoma.
In 1948, Jackson Thomas Wolfe was Chairman, C. H. Rogers was Secretary,
Tilden Cramp was Second Vice-President and Dwight H. Thornton was
Treasurer. The Board of Trustees consisted of William Meeks, Dewitt
Duncan, White Tobacco Sam (one of the leaders of the Medicine Society
faction), Daniel Squirrell and Timothy Rattler. Various "Keetoowah
societies" have existed among the Keetoowah people, claiming a right to
leadership. Wisdom reported:
There seems to be no objection on the part of either the leaders or
the members to affiliation with other Indians in any kind of
organization the federal government may wish to set up. It is felt
that a count credit association, for example, would not interfere
with the functioning of the Keetoowah organization itself, so that
there will be not active opposition to the acceptance of government
credit.(14: I)
The Keetoowah Society, Inc., felt little need to avail themselves of
reorganization, unless their organization dominated. For their part,
Keetoowah Society, Inc., fell moribund after 1937, as members simply
merged with the UKB, or in the 1970s, with Cherokee Nation of Oklahoma.
Indications of the breach between the Keetoowah Society, Inc., and the
UKB, and the eventual dissolution of the Keetoowah Society, Inc., appear
in a variety of sources. For example, during the organization process,
W. O. Roberts found that:
Levi Gritts has separated himself and a group of followers from the
main organization and . . . there is considerable opposition
emanating from the Gritts' organization against the group dominated
by Rev. Pickup, Mr. Sixkiller and others.(66: IV)
In 1949, during the final preparations for the UKB election to adopt the
Charter, Constitution and By-laws, most "hold-out" members of the
Keetoowah Society, Inc., merged with the UKB, and by the time the
organic documents were approved, the Keetoowah Society, Inc., was
essentially defunct. Anna Gritts Kilpatrick, the daughter of Levi
Gritts, later became a Secretary of the Band.
While confusion reigned about the relationship between the
Keetoowah Society, Inc., and the UKB, Wisdom did not neglect to review
the conditions of the Original Keetoowah Society, concentrated at Gore,
in the western tip of Sequoyah County. The Original Keetoowah Society
was not "original" in any sense. Even John Smith's "revelation" as to
the origin of the Keetoowahs came at least two years after the
organization broke from the Keetoowah Society. The leaders (primarily
Redbird Smith, his sons and in-laws) claimed to carry the only authentic
religious inheritance of the Cherokee people as one of their central
tenets. The leaders' claims rested on their ability to validate their
claims to wisdom and spiritual gifts. Followers began to question both
the leaders' wisdom and spirituality before 1912. This body, according
to Wisdom, had the most complex internal organization at one time, due
to the creation of an elaborate religious complex at their religious
grounds around the turn of the century, though the decline was
precipitous between 1918 and 1937. These are the "Nighthawk" Keetoowahs,
so named due to their tendency to hold night gatherings, to send
messengers by night, or the like. Wisdom wrote:
Their membership at one time ranged between 3,000 and 5,000 but due
to depression and scattering of families only about 900 now take
active part as members. A roll is made up by the Society each year,
and at present contains 887 signatures. They are almost entirely
full-bloods, with perhaps thirty to fifty mixed-bloods. They live
in Sequoyah, Cherokee, Adair, Delaware, Mayes and Muskogee
Counties, with the greatest proportion in western Sequoyah County.
They are almost entirely of rural habitat.
The original leader of this faction was Redbird Smith, and his
two sons are today Principal Chief and Assistant Chief of the
Society.(14: I)
A month after Kirgis issued his Opinion, the Original Keetoowah Society
protested the inaccuracy of the Wisdom report as to them in a letter to
the Commissioner, and Wisdom's failure to clear the report, as promised,
with the Nighthawk Council before submitting it.(*: IV) Chief Sam Smith
of the Nighthawks was a son of Redbird Smith. When given the opportunity
to participate in talks to bring about a coalition government for the
purposes of reorganizing the UKB under OIWA and IRA, Smith notified
Organization Agent A. A. Exendine that the Nighthawks never would
participate in such a meeting. Exendine assured Smith that even thoguh
the Keetoowah groups would come together under one banner, each entity
would retain its local autonomy and administer government benefits or
funds to its own members.[Memorandum, 13 June 1939, Ben Dwight,
Organizational Field Agent for the Indian Service, to Regional
Coordinator for Organization A. C. Monahan Re: Keetoowah Organization,
summarizing the Division's activities with regard to the UKB (Fort Worth
NARA).] Thus ended the opportunity of the Nighthawks to enroll as a
group in the UKB. Thus died all legitimate claims of the Nighthawks that
they were uninformed about the reorganization of the UKB and its
implications. The UKB never identified itself with Nighthawk interests
after this event, though the Stokes Smith Nighthawks claim otherwise.
This probably is because in 1955, the faction of Nighthawks at Redbird
Smith's original grounds joined the UKB en masse!(Leeds 1992:58)
Wisdom remarked that, after the Keetoowah Constitution in 1859,
things went well for about thirty years:
During the period from 1859 to 1889, the Keetoowahs flourished and
were strongly united. Almost without exception the Keetoowahs went
with the north in the Civil War. In all this period the Keetoowahs
were either Baptists, Methodists, Presbyterians, a few Quakers, and
a part of the worshipped according to the rituals of the ancient
Keetoowah, but all got along harmoniously. Dissension came only
after the white missionaries objected to and condemned what they
termed "the pagan form of worship" of the ancient Keetoowahs, and
designated them as "the work of the Devil."(14: I)
The Keetoowah Constitution was amended in 1889, "making it rather a
political organization in character;" and:
From this period the difference between the Christian Keetoowahs
and the ancient Keetoowahs became more marked, and there was a lack
of harmony even in their policies of political effort.
In 1895 when the question of the allotment of lands to the
members of the Five Civilized Tribes was being agitated, the
ancient Keetoowahs became very active in opposing the proposed
change. In this, however, all the Keetoowah elements were united in
their opposition to any speedy change. From this time to 1900 the
following of Redbird Smith were designated universally as the
"Nighthawk Keetoowahs" because of their vigilance in their
activities.
On January 31, 1899, a general election was held for the
purpose of determining on what is known as the Dawes Commission
Treaty. The full-bloods lost by two thousand fifteen votes. The
Keetoowahs were united in their opposition to the allotment of
lands and dissolution of their Government, but a part of them saw
that the change was inevitably coming and adjusted themselves
accordingly.(14: I)
The Keetoowah Society element that accepted that "change was inevitably
coming" became the Keetoowah Society, Inc. According to Levi Gritts,
Redbird Smith and the "Nighthawks" withdrew from the Keetoowah Society,
long before the latter obtained its charter from the United States Court
on 20 September, 1905. After a meeting of the Society (at Big Tucker
Springs in Tahlequah District in Wisdom, at Moody's Spring in Tahlequah
District, according to Tyner, 19: I, p. 68) on 6 September 1901,
regarding proposed changes in their government, the Keetoowah leadership
decided that the people should enroll--although under strong protest,
filing opposition statements with their allotment papers--and that they
should cooperate with government representatives, in order to have a
stronger bargaining position in getting a legislative solution. Redbird
refused to participate in the voting, and withdrew with eleven clan
brothers without notice to the Society. Therefore, Redbird Smith formed
his own organization, thus creating the first major splinter group from
the Keetoowah Society.(14: I) Redbird Smith led 5789 Nighthawks in
opposing the entire allotment and termination scheme, with their
headquarters near the Illinois River northeast of the present town of
Gore. Redbird persuaded many not to participate in the Dawes
Commission's proceedings at all. In 1908, Redbird Smith was elected
Chief of the Nighthawks, whereas he formerly had been "Chairman." In
1910, Redbird gave up:
Redbird Smith claimed he was the original Keetoowah, so finally his
followers became accustomed to being called Nighthawks and now they
are known by that name. Redbird Smith was chief and his orders were
law. He made a number of trips to Washington, D. C. His members
would make up his expenses for the trips. They would claim that
they were going to get their Cherokee government back and generally
set a time when it would be decided in their favor. They claimed
one must join their Society to receive one's rights. One could not
join their Society unless one was a Cherokee by blood and would
withdraw his membership in the church and worship around the fire
according to their belief.(14: I)
While viewing themselves as the only authentic keepers of Keetoowah
culture and the guardians of the Keetoowah people, Redbird Smith and his
heirs repeatedly failed to foresee, detect, or prevent the exploitation
of the Tribe. By 1910, a Federal program of harassment, arrest and
imprisonment caused the apparent acquiescence of such Keetoowah Society
leaders as Redbird Smith to the work of the Dawes Commission, including
the allotment in severalty of Cherokee Reservation. Redbird decided he
had erred, and advised the election of a Cherokee Chief.(Levi Gritts, in
14: I) Levi Gritts also recalled:
Before his death he contacted C[hester]. P[olk]. Cornelius, Oneida
Indian, in Washington, D. C. and induced Cornelius to become a
legal adviser for this group. . . . They succeeded in having the
their restrictions removed from their lands, then they pooled their
lands and made mortgages. They bought cattle for their Society and
also a bank at Gore, Oklahoma. What investments they made became
the common property of their Society. The bank failed and their
other property disappeared.
Cornelius had swindled Smith, his family, and scores of his followers
with schemes that clouded the "Nighthawks'" minds and emptied their
pockets.(Redbird Smith died on 8 November 1918)
The role Chester Polk Cornelius finally played in the decline of
the "Nighthawks" and the formation of various late Keetoowah factions
was staggering. This was the same self-made "community organizer,"
"religious and ceremonial authority," and economic development "expert"
who allegedly swindled the Sac and Fox and others in the same era.
Cornelius and his sister, Laura, even testified before congressional
committees on economic development and self-determination.
According to the late Archie Sam, a UKB member, leader of the
Medicine Springs grounds, and descendant of the Medicine Society
leaders, Cornelius was a reprobate from the beginning, whose baleful
influence on one of the primary religious authorities, John Smith
(Redbird's son), led the leaders of various fires to break away,
including the Medicine Society, one of the Keetoowah factions. After
Cornelius ran off with their money, the "Nighthawks" combed the Ozarks
with shotguns for months trying to track him down. John Smith's
reputation suffered greatly in the aftermath. When White Tobacco Sam and
John Smith decided in 1912 to investigate the possibility of bringing
the very promising peyote ceremonies down from the Quapaws in an attempt
to revitalize the Keetoowahs grounds, John Smith made the mistake of
bringing the only persons who would still listen to him, mostly whites
from Tulsa. Sam abandoned the plan in disgust along with the concrete
star and half-moon circle Smith had laid down (in concrete) out in the
Sequoyah County woods. Archie Sam explained that this incident was an
important factor in keeping Cherokees away from peyote (Slagle;
interview, 1981) Levi Gritts also attributed the schism between members
of the Seven Clans Society and the Nighthawks to the Smith family's
venality and mendacity:
The Pumpkin fire crowd have charged [the "Nighthawk" leaders with]
mismanagement of the common property and that a few are in control,
the ["Nighthawk"] medicine men not representing all of the
clans.(14: I)
Thus, one finds that profound disillusionment had separated the
"Nighthawks" and their members from other Keetoowahs by the late 1930s,
although the "Nighthawks" recognized the Keetoowah Society, Inc., for a
time, after 1905, for the purposes of finding an attorney and
representative in Washington, D. C. (Frank Boudinot and Levi Gritts).
The only real success of the Keetoowahs "proper" during the Dawes
Commission years was that Dave Muskrat, Head Captain of the Keetoowah
Society, Inc., was able to work in a provision protecting the lands of
fullbloods, by restricting them. However, by 1937, the "Nighthawks" had
retreated again, and apparently wanted a separate OIWA charter of their
own:
The original Keetoowah group are heartedly opposed to affiliation
with any Indians except their own members, and they are the only
Keetoowah faction so opposed [as of 1937; the Four Mothers Nation
and Seven Clans Society later demanded separate recognition]. It
seems certain that they will have nothing to do with the county
credit associations or with eventual tribal organization. In fact,
one of the major causes for expulsion from membership is that of
entering into any kind of cooperation with outside Whites or
Indians. This objection may be tempered later on, but it is
certainly strong at the present time.(14: I)
This policy remains strong, though affiliation of "Nighthawks" with
Cherokee Nation of Oklahoma seems to be the rule, and "Nighthawk"
spiritual leaders advertise and market their services to Cherokee Nation
of Oklahoma.
The "Nighthawk" officers in 1937 were:
Principal Chief Sam Redbird Smith, Bird Clan, representing Bird
Clan
John Redbird Smith, Assistant Chief, Bird Clan, representing Deer
Clan
William Rogers, Vice-Chief, Turtle Clan, representing Savannah Clan
Dave Bush, Vice-Chief, Bear Clan, representing Bear Clan
John Johnson, Vice-Chief, Bird Clan, representing Cat Clan
Tom Smith, Vice-Chief, Bird Clan, representing Turtle Clan
Martin Lincoln, Vice Chief, Wolf Clan, representing Wolf Clan.
There was a chief "Nighthawk" fire at the main town, Buffalo, and two
subsidiary fires, also known as the Stokes Smith fire, the Redbird Smith
original fire, and the Goingsnake, or Seven Clans, fire remained. There
had been twenty-one subsidiary towns and fires in the early 1900s, all
united in fealty to the central town and fire of Buffalo, but
factionalism and abandonment of the "Nighthawk" cause led members away
to other Keetoowah fires or factions, or simply away.
According to recent observers of the great holidays at the Stokes
Smith Stomp Dance Grounds at Vian, Oklahoma, attendance has been as high
as 600 at some events over the last ten years, and as low as 200; and
there is no way of knowing how many in attendance are members, due to
the secrecy of the organization. It is very unlikely that the membership
of the Original Keetoowah Society approaches its earlier numbers. Today,
a mere handful of enrolled UKB members may belong to the "Nighthawk"
Keetoowah Society.
In response to recent litigation between the UKB and the United
States, it seems the Original Keetoowah Society, specifically the
faction at the Stokes Smiths' Grounds Branch (which, to be historically
accurate, certainly was not the "original" Keetoowah Society in a
chronological or successional sense), also called the "Nighthawk
Keetoowahs" (currently under the leadership of Chief William Smith, a
descendant of Redbird Smith), have claimed that the UKB is a splinter
group of their version of the Keetoowah Society. The "Nighthawks" fail
to acknowledge, as they did in 1946, the rights or existence of all
other contemporary Keetoowah organizations, including the Keetoowah
Society, Inc. Indeed, Redbird Smith's point in breaking away with his
circle of followers from the Keetoowah Society in the 1890s to form the
"Nighthawk" group was to avoid contact or association with Keetoowahs,
other Cherokees, and other leaders who might disagree with his opinions,
or challenge his personal authority. The Keetoowah Society and the
Keetoowah Society, Inc., as well as most Keetoowah factions, were
political organizations with concerns for the preservation of positive
aspects of Keetoowah culture, including the language. The "Nighthawk"
Keetoowah Society was a religious cult from its inception. The
"Nighthawks'" reputation for, among other things, incorporating such
ritual elements as periodic sacrifice of live animals in their sacred
fire alienated many Keetoowahs, and still does.
Since 1910, the "Nighthawk" Keetoowah Society claimed to remain
politically uninvolved as a matter of doctrine:
All the factions, except the Nighthawks, are definitely political
in character. The latter may be called primarily religious and
cultural, and have been very little involved in political activity
or pressure since Redbird Smith first advised them against it in
1910. Their program now seems to be that of preserving their
internal organization, religion, traditions, and cooperative way of
life. The other factions, however, seem to have no program except
the political one, and their community activities consist entirely
in holding meetings for political purposes.(14: I)
By 1946, the members of the various factions were ready to form a
political coalition, with the exception of "Nighthawks," "Seven Clans"
and "Four Mothers Nation." Recently, the "Nighthawk" Chief, William
Smith, publicly embraced the agenda of Cherokee Nation of Oklahoma
against the UKB. Mr. Chadwick Smith, Esq., represents the "Nighthawks"
in their claim against the UKB, stating the UKB is an unauthorized
"Nighthawk" splinter group. Chad Smith's own grandmother, Rachel
Quinton, was a Council Member and Secretary of the UKB for a number of
years, though she resigned for several years in protest of Chief Glory's
collaboration with Principal Chief Keeler, and apparently never viewed
the UKB as a "Nighthawk" splinter group. She reported to the UKB Council
in 1963 that she had attempted without success to negotiate with Stokes
Smith, as Chief of the Nighthawks at Stokes Grounds, to persuade him to
work with the UKB. On the other hand, Chad Smith is an employee of the
Cherokee Nation of Oklahoma court system. The "Nighthawk" Keetoowah
Society and their ceremonial centers at Stokes Smith's Grounds and
Redbird Smith's Grounds were always very important, particularly in
their heyday, but the Keetoowah Band has survived regardless of
fluctuations in activity of the various Keetoowah Societies.
In 1988, the "Nighthawk" organization established yet another non-
profit organization under Oklahoma statutes. The UKB Charter,
Constitution and By-laws were designed precisely to insure that such
independent and unstable factions could benefit from membership in a
federally-recognized tribe while maintaining their separate identities
and agendas. According to the UKB Charter, the UKB can extend separate
charters to the various Keetoowah organizations whom it recognizes,
regardless of their own unique membership requirements and laws,
including religious canons.
The Foster Faction, called the Eastern Immigrant Cherokees, or
Eastern and Western Cherokees, claimed about 1000-2000 full-blood
members in 1937, and about 200 mixed-bloods, located principally in
Delaware, Adair, Cherokee, Mayes and Sequoyah Counties. The group
organized in 1906 under Taylor and Hildebrand to pursue claims against
the U. S. This faction formalized its organization under the Keetoowah
Society, Inc., in 1910, and hired the same attorney. The group became
embroiled with the Keetoowah Society, Inc., over apportionment of claims
monies, and did not survive the resolution of these claims.
The Cherokee Immigrant Indians, organized in 1907 under Joe Fox and
Coming Snell. In 1937, they were under the leadership of a 67-year-old
Baptist Deacon and former "Nighthawk" Keetoowah named Ned Blackfox, and
had a roll of 3,986, of whom Wisdom presumed only one-quarter or fewer
were active, almost all of whom were full-bloods living in Cherokee,
Delaware, Adair, Muskogee, Mayes and Sequoyah Counties. Blackfox left
the "Nighthawks," partly due to disagreements about participation of
Keetoowahs in the fighting in World War I.(14: I) Blackfox set up his
organization because of his frustration with the apparent reluctance of
the Keetoowah Society, Inc., or the "Nighthawks" to force the U. S. to
abide by the treaties of 1835 and 1836, which had guaranteed the lands
of the old Cherokee Nation to the full-bloods. Blackfox claimed to head
the remaining cohort of the original Ross party, and eventually
affiliated with the Eastern Immigrant group, to become their Chief. He
and most of his followers
distrusted government credit programs.(14: I)
The Seven Clans Society, formerly known as the Goingsnake Fire of
the Nighthawk Keetoowah Society, contained about 120 families in 1937,
though Superintendent Roberts claimed there were 18-20, or 20-30
families. Nearly all were full-bloods from north of Proctor in Cherokee
and Adair Counties. The leaders were Jim Hogshooter and Eli Pumpkin.
They objected to the abuse of common property by the "Nighthawks"
central leadership, and sought to pool members' holdings to assure the
prosperity of their families. Hogshooter was former assistant chief at
Buffalo Town under Sam R. Smith of the "Nighthawks," and went back to
Adair County after the Medicine Men at Buffalo Town passed him over for
Chief. He objected to the practice of setting up chiefs and declaring
them Medicine Men at the same time, due to the declining membership in
the "Nighthawks." However, when he and Eli Pumpkin took up their own
fire in Adair County, and were unable to find sufficient participants,
they installed a woman and an eight-year old boy as Medicine Men,
virtually insuring scandal. The Seven Clans Society kept the Goingsnake
fire going, when the "Nighthawks" leadership at Buffalo Town wanted to
close it down. Levi Gritts attributed the death of Hogshooter, the
drunken comportment of Eli Pumpkin and his followers, and the apparent
dissolution of the Goingsnake District to the misuse of the Goingsnake
Fire by the Seven Clans Society.(Gritts, in 14: I)
The Medicine Society was almost gone by 1937, though two brothers,
White Tobacco Sam and Charley Sam (who referred to themselves as a John
Ross faction), were trying to keep it going. White Tobacco Sam was on
the Board of Trustees of the Keetoowah Society, Inc., in the 1940s. In
the 1970s Archie Sam (White Tobacco Sam's son), and his friends revived
the Medicine Springs (Nuwoti in Cherokee, Uwiqe Hiliswa in Creek) fire
in Sequoyah County, also associated with the name Natchi/Tsalagi/Abihka.
Robert and Eliza Sumpka and their friends continued a grounds into the
1980s. Archie Sam never abandoned the hope of regaining the seven sacred
wampum belts from the "Nighthawks," claiming his group had original
custody of them. The members of this faction merged entirely with the
UKB, Four Mothers Nation (with whom they had ancient ties), Creek
Nation, or Cherokee Nation of Oklahoma.
In the early 1900s, Redbird Smith himself co-sponsored the revival
of at least one important opposing faction, the Four Mothers Society, or
Nation. Four Mothers Nation sought to unite traditionalists of the Five
Tribes under one central fire. The "Four Mothers" name referred to the
Cherokee, Choctaw/Chickasaw, Creek and Seminole bodies. Interestingly,
this group was Keetoowah Cherokee in composition only in part; for BIA
investigators found that most members were Creek. This group could
constitute an Indian community, but strictly speaking, not a historical
tribe. Redbird Smith's "Four Mothers" friends believed that the ancient
common Mound Builder religion of the southeastern tribes united them
into one culture, and religious unity should forge them into a Nation.
Only the Keetoowah members of the Four Mothers Nation were eligible for
membership in the UKB in 1946, and that remains true today. Four Mothers
Nation, as well as the Seven Clans Society, tried without success to
organize under OIWA and IRA until the 1950s, apart from any other
entity, failing because the Secretary of the Department of the Interior
had determined that they were factions of the UKB. Four Mothers Nation
still shows no interest in merging with the Keetoowah Society, Inc.
Undoubtedly, the "Nighthawk" Keetoowah Society leadership contributed to
Keetoowah factionalism in various ways, and inadvertently assured that
neither the "Nighthawk" organization, nor Keetoowah Society, Inc.,
though federally chartered in 1905, would ever be an umbrella
organization for all the Keetoowah people.
Both the legislative intent of the 1946 Act and the record of the
Act's implementation prove the "Nighthawk" Keetoowah Society's recent
claims against the UKB to be a thinly-veiled effort on the part of
Redbird Smith's heirs and their followers to gain by fiat a secular and
religious authority over the Keetoowah people. The Keetoowah Society,
Inc., and the "Nighthawks" chose not to submit to the authority of the
UKB. The "Nighthawks" ordered their members not to join the UKB. The
"Nighthawks" refused to seek a UKB Charter, or support "Nighthawks" as
candidates up for election to the UKB Council. The "Nighthawk" Keetoowah
Society always was influential, but it never controlled all the various
factions of Keetoowahs. The "Nighthawks" had distanced themselves from
the group called the Keetoowah Society, Inc., even before the latter
group obtained their Federal Charter on 20 September 1905. Neither group
controlled the all the christian Keetoowahs, or various independent
Keetoowah ceremonial grounds and sects in the Cherokee Nation. Though
various of these organizations subsequently dissolved, their members and
descendants compose most of the UKB membership today, due to the
organization work from 1937 to 1950 that resolved many of their
differences and united them politically, while members and factions
retained their religious and other distinctions.
Therefore, the name itself, "United Keetoowah Band," reflected the
purpose of UKB organization effort as far as Congress, the Indian
Service and the Band itself were concerned: to unite all the Keetoowah
factions, if possible, and to provide for the broadest possible
participation and involvement in the culturally Cherokee population in
the UKB organization effort. The plan assured that the Keetoowah
Society, Inc., and the "Nighthawks," along with the other Keetoowah
organizations and their members, would have a full right to
participation and membership in the UKB. If any organization was to have
a dominant role, their dominance would be with the consent of the
members of the other factions, or due to larger numbers participating in
elections. The "Nighthawks" altogether refused to participate in the
organization of the UKB.
Many enrolled members of the UKB consider themselves Keetoowah
traditionalists and spiritualists, while maintaining church membership,
with no apparent conflict. A succession of christian church leaders and
ministers has served on the UKB Council. The Keetoowahs of the UKB
organized themselves and conducted their local activities at the time of
reorganization, as is true today, primarily around neighborhood
churches, community centers and ceremonial grounds. The growing tribal
complex at Tahlequah, started in Chief John Hair's administration, has
been the center of this activity. The entire Keetoowah social network,
primarily settled among the northeastern Oklahoma counties of Adair,
Cherokee, Sequoyah, Delaware, Mayes, Muskogee, Craig, Nowata, Rogers,
Tulsa, Washington and Osage, composed the Keetoowah Band.
The Act of August 10, 1946 (60 Stat. 976) provided that the
Keetoowah Indians of the Cherokee Nation of Oklahoma "shall be
recognized as a band of Indians within the meaning of Section 3 of the
Oklahoma Welfare Act." Congress expressly permitted the Keetoowah
Indians "to organize apart from the Cherokee Nation as a separate band."
[See Letter, decision of September 20, 1949, Assistant Commissioner for
Indian Affairs John H. Provinse to Houston B. Teehee, attorney for the
Seven Clans Society]. In denying the right of separate recognition for
the Seven Clans Society or other splinter groups to organize apart from
the UKB, the Department clarified its position on the Keetoowah Band's
right to land acquisition in Oklahoma and as to the Band's sovereign
authorities under the Keetoowah Act. Only the United Keetoowah Band
entity, organized fully under OIWA and IRA, functioned as a governmental
entity in the full sense from 1906 to 1946; and after the Keetoowah Act,
the UKB functioned under their own OIWA/IRA government. So one finds
that of the various Cherokee groups in Oklahoma and elsewhere, only the
United Keetoowah Band of Cherokee Indians in Oklahoma and the Eastern
Band of Cherokees has succeeded in organizing and conducting its affairs
under OIWA/IRA. The burden rests with Cherokee Nation Oklahoma to show
its own parallel source of congressional reorganization authority.
In denying the continuous existence and reorganization of the UKB,
the BIA and Department of Interior, through their staff and agents, have
disregarded original records pertinent to the implementation of the Act
of August 10, 1946. These documents include the approved Charter,
Constitution, Bylaws and related organic documents of The United
Keetoowah Band of Cherokee Indians in Oklahoma. These organic documents,
congressionally authorized and administratively ratified, now rest in
the National Archives, Washington, D. C.(*: IV) These documents, and
accompanying departmental orders and congressional and other
correspondence, conclusively prove the UKB's autonomous existence as a
recognized Indian tribe, fully entitled to participate in a Federal-
tribal intergovernmental relationship. Certain documents also verify the
Department of the Interior's decisions fully supporting the Tribe's
right to land acquisition in Oklahoma, following the Act of August 10,
1946. Monitoring studies and letters identify the causes and products of
factionalism of Keetoowah sub-divisions, as well as the Department of
Interior's attempts to address and resolve that factionalism during the
reorganization of the UKB. These documents distinguish among the United
Keetoowah Band from Cherokee Nation, the Nighthawk Keetoowahs, and the
Keetoowah Society, Inc., identify the United Keetoowah tribal
population, and attest to the Tribe's present right to determine its own
population. Departmental decisions relying on the Tribe's approved
organic documents stipulate to the terminal date of the Secretary's
authority to approve the Tribe's governmental edicts (3 October 1960).
The NARA holdings on the UKB, in these respects and otherwise, lay to
rest the most important arguments denying the continuous, autonomous
sovereign existence of the Tribe under the present governing documents,
since 1950. The records indicate that the key figures in UKB
reorganization included: the Keetoowah Council and other Keetoowah
leaders and elders; in Congress, the Oklahoma 2nd District Member of
Congress Stigler (who represented Adair, Cherokee, Haskell, McIntosh,
Muskogee, Okmulgee, Sequoyah and Wagoner Counties), and Oklahoma Senator
Elmer Thomas; and in the Executive Branch, Interior - Secretary William
E. Warne, Interior - Secretary Dillon S. Meyer, Solicitor - Indian
Affairs Felix Cohen, Solicitor - Indian Affairs Abe Fortas, Assistant
Commissioner D'Arcy McNickle, Commissioners Zimmerman and Myer,
Assistant Commissioner Provinse, and Muskogee Agency Superintendent
(also Five Tribes Area Director) W. O. Roberts. Most of the exchanges of
correspondence are among responsible officers, administrators and
legislators regarding the Keetoowah reorganization process.(*: IV)

KEETOOWAH COHESIVENESS AND CONTINUITY AFTER 1906

[Note: The following section relies primarily on Felix S. Cohen,
Felix S. Cohen's Handbook on Federal Indian Law (Charlottesville, Va.:
Michie Bobbs-Merrill, 1982); 80: I]
A series of congressional Acts before Oklahoma's statehood
restricted the governmental authorities of the Five Tribes in Indian
Territory without utterly eroding them. The Oklahoma Organic Act, Ch.
182, 26 Stat. 81 (1890), expanded Federal jurisdiction, extended certain
Arkansas laws over non-indians in the diminished Indian Territory, which
was occupied by the Five Tribes. The allotment process began in 1893 for
the Five Tribes with the creation of the Dawes Commission, which
negotiated with these Tribes for allotment in the Appropriations Act of
March 3, 1893, ch. 209, Sec. 16, 27 Stat. 612, 645 [see Woodward v.
DeGraffenried, 238 U. S. 284 (1915)], and Congress began to diminish the
powers of the Five Tribes. The Act did not affect tribal jurisdiction,
generally, over tribal members. The Act of March 1, 1889, 25 Stat. 783,
784, 788, established a special Federal court in Indian Territory, with
exclusive jurisdiction over all Federal crimes not punishable by death
or imprisonment at hard labor, and over certain civil cases, except for
"offenses committed by one Indian upon the person or property of another
Indian."
However, the Curtis Act, Act of June 28, 1898, ch. 517, 30 Stat.
495, made civil laws of the Five Tribes unenforceable in Federal Court
(Sec. 26, 30 Stat. at 504) and abolished tribal courts (Sec. 28, 30
Stat. at 504). The agreements with the Five Tribes varied in particular
ways. For instance, the Cherokee Nation Agreement provided that nothing
in it was to be interpreted as reviving or reestablishing tribal courts
that earlier Acts of Congress had abolished (Agreement with the Cherokee
Nation, April 1, 1900; Act of March 1, 1901, ch. 675, para. 72, 31 Stat.
848, 859). The courts of the Seminole, Choctaw and Chickasaw Nations
appear to have preserved their judicial powers, by neither expressly
abolishing nor preserving them. The effect of the Five Tribes Act was to
require presidential approval before the creation of new courts and tax
structures.(76: I)
The Act of March 2, 1906 (34 Stat. 822) continued the "present
tribal governments" of the Five Civilized Tribes, until all of the
property of the tribes had been distributed to individual members. The
Act of April 26, 1906, ch. 1876, 34 Stat. 137 provided mainly for the
completion of the allotment process and the disposition of tribal lands
but included some provisions diminishing tribal governmental powers. The
Act allowed the U. S. President to fill the office of Principal Chief of
Cherokee Nation as provided (Sec. 6, 34 Stat. at 139), abolished tribal
taxes under tribal law or Department of Interior regulations prior to
dissolution of the tribe (Sec. 28, 34 Stat. at 139), required
presidential approval of all tribal legislation and contracts affecting
tribal property (Sec. 28, 34 Stat. at 148), and limiting the lengths of
council sessions to 30 days (Sec. 28, 34 Stat. at 148).
The Five Tribes Act of 1906 provided for final disposition of the
property and legal affairs of the Five Tribes, with special emphasis on
the allotment process, and the establishment of municipalities in Indian
Territory, clearing the way for statehood. The Act's language adopted
language from various of the agreements with the Five Tribes. Very
important provisions drastically limited the sovereignty of Cherokee
Nation:
Section 11 [Tribal Taxes Abolished] . . . Provided, That all taxes
accruing under tribal laws or regulations of the Secretary of the
Interior shall be abolished from and after December thirty-first,
nineteen hundred and five, but this provision shall not prevent the
collection after that date nor after dissolution of the tribal
government of all such taxes due up to and including December
thirty-first, nineteen hundred and five, and all such taxes levied
and collected after the thirty-first day of December, nineteen
hundred and five, shall be refunded.
Section 28 [Tribal Government Preserved to the Extent Not
Terminated] . . . Provided, That the Tribal existence and present
tribal governments of the Choctaw, Chickasaw, Cherokee, Creek and
Seminole tribes or nations are continued in full force and effect
for all purposes authorized by law, until otherwise provided by
law. . . . but the tribal council or legislature in any of said
tribes or nations shall not be in session for a longer period than
thirty days in any one year; Provided, That no act, ordinance, or
resolution (except resolutions of adjournment) of the tribal
council or legislature of any of said tribes or nations shall be of
any validity until approved by the President of the United States;
Provided further, That no contract involving the payment of
expenditure of any money or affecting any property belonging to any
of said tribes or nations made by them or any of them or by any
officer thereof, shall be of any validity until approved by the
President of the United States.
The Cherokee Nation still had a special trust relationship with the
Federal government, and had not been terminated in the sense that tribes
were during the 1950s. Congress expressly extended the existence of the
Cherokee Nation, and intended that members could elect to continue its
functions, or abandon tribal relations as they saw fit. The Cherokee
Tribe retained basic powers necessary to carry on self-government,
including the right to choose a form of government and select
representatives, and to disburse assets. By the 1930s, the Department
found no functional Cherokee Nation government, but only a shell,
consisting of the presidentially-appointed Principal Chief, whose main
function was to sign papers disposing of Cherokee assets. Also, after
all the legislation of the 1890s to 1907, congressional limitations on
Cherokee Nation's sovereignty far outweighed the retained attributes.
The continuing impact of old Cherokee Nation laws and constitution(s) or
amendments (particularly the 6 September 1839 Constitution) remains
unclear, even today.
Drywater v. Keeler, No. 75-247-C, Slip Op. (D. Oklahoma March 31,
1976), in dictum, suggested that the old Constitution was void, and
though the 1975 Constitution purported to supersede the 1839
Constitution; however, it is unclear how such a Constitution could
supersede the old one unless formed under the 1934 and 1936 Acts, or
similar express Federal legislative authorization. Harjo declared that
the old Creek constitution remained valid, but the court had difficulty
understanding how that document might still apply, and that appears to
be the case for CNO. Even where new constitutions have "superseded" the
old, as in the cases of the non-OIWA, non-IRA constitutions of Seminole
and Cherokee, the force and effect of the old laws and their
relationship to the new constitutions remains unclear. One thing is
certain: the 5 July 1976 non-OIWA, non-IRA constitution of CNO had no
effect on the pre-existing OIWA and IRA Charter and Constitution of the
UKB.
The admission of Oklahoma to Statehood on 16 November 1907
automatically deprived the Nations of legislative and civil functions in
the old Indian Territory. In 1935, James W. Duncan, Secretary of the
Keetoowah Society, Inc., wrote, "By Acts of Congress . . . The Cherokee
Nation's laws . . . had been taken from them, so that . . . [Cherokee
Nation lacked] authority to enact any laws on its behalf. . . .
Everything seemed hopeless. The Nation as a Nation was dead;" and Levi
Gritts, Vice President of the Society, Inc., stated, "the treaty of 1898
. . [provided for] land allotment and the abolishment of the Cherokee
Nation and government."(51: IV) In 1975, Principal Chief W. W. Keeler
wrote:
Since 1907, when Oklahoma became a state, the Cherokee Nation as a
political entity ceased to exist. The Federal government, believing
that the continuation of political bodies within the Five Civilized
Tribes might ultimately bring about problems in the newly formed
state, had provided that the Tribe could no longer legally elect
their own leaders. . . .(11: I)
So, from the 1890s to 1906, a succession of Acts of Congress diminished
the governmental authority of Cherokee Nation, and the people were on
their own, while Section 28 of the 1906 Five Tribe Act expressly
preserved the existence of rudimentary tribal governments until Congress
provided otherwise:
[Provided] . . . That the tribal existence and present tribal
governments of the . . . [Five Civilized Tribes] or nations are
hereby continued in full force and effect for all purposes
authorized by law, until otherwise provided by law, but the tribal
council or legislature in any of said tribes or nations shall not
be in session for a longer period than thirty days in one year:
Provided, That on act, ordinance, or resolution (except resolutions
of adjournment) of the tribal council or legislature of any of said
tribes or nations shall be of any validity until approved by the
President of the United States: Provided further, That no contract
involving the payment or expenditure of any money or affecting any
property belonging to any of said tribes or nations made by them or
any of them or by any officer thereof, shall be of any validity
until approved by the President of the United States.
Also, Section 58 of the Agreement with the Cherokee Nation, April 1,
1900 had said, "The Tribal Government of the Cherokee Nation shall not
continue longer than March 4, 1906."
The U. S. abolished all the Cherokee Nation's independent judicial
and legislative powers, and most of the Tribe's administrative
functions, and eliminated popular elections of officers. Congress
realized that unless the U. S. presidents had the power to appoint
tribal leaders as agents of the U. S., the government would be helpless
to assure orderly, timely disposition of allotted lands and other assets
of Cherokee Nation.
The continued existence of the office of Principal Chief also
helped the U. S., Oklahoma, and business interests to avoid thorny
problems involving unresolved legal issues relating to Cherokee Nation.
The practical effect of Section 28 of the 1906 Act, in softening Section
58 of the Agreement with the Cherokee Nation, April 1, 1900, was to
mutate the Principal Chiefs into Viceroys of the President, with
jurisdiction over the Five Civilized Tribes as colonial governments,
provided that these "Chiefs" would have no more independent authority
than any other Federal employee or appointee. The Principal Chiefs'
perceived source of authority, as presidential appointees, was not the
inherent sovereignty of the tribe, but of the United States, through
Section 28 of the 1906 Act. Although the inherent sovereignty of the
Five Civilized Tribes persisted, as the Harjo Court eventually decided
in 1976, the tribes were under the direct governmental control of the
United States between 1907 and 1970, or even later. Until Cherokee
Nation reorganizes under OIWA and IRA, the government of Cherokee Nation
relies on the condonation of the United States in the exercise of tribal
sovereignty, under precisely the same limitations as Section 28 of the
1906 Act provided; recall that Section 58 Agreement with the Cherokee
Nation, April 1, 1900 had declared the intent of Congress that "The
Tribal Government of the Cherokee Nation shall not continue longer than
March 4, 1906." Further, if the 1937 Director of Lands determination was
correct, then as long as there may be claims against the U. S., a
Cherokee Nation government organized under OIWA and IRA must assure that
"those persons whose names are on the final rolls of the Cherokee Nation
[who] have certain rights in the remaining assets of the tribe" have the
right to participate in Cherokee Nation's assets, in order to avoid
litigation. The UKB is not required to include all Cherokee Nation Dawes
descendants as members, and is not subject to direct Federal statutory
control of its membership decisions.
Considering the Director of Land's 1937 Cherokee Nation
determination, it seems unlikely that Cherokee Nation would risk any new
tribal roll that would deny participation of any descendants in the
remaining assets of the tribe. The Cherokee Chiefs who served through
1970, if they had been subject to a new government organized under OIWA
and IRA, would not have been able to control decisions regarding
Cherokee claims, as Milam and Keeler did. Under the existing 1975
Constitution, the final authority in Cherokee affairs, including the
prosecution of claims, remains the Chief. Chiefs Swimmer and Mankiller
have had the same authority as Milam and Keeler. Cherokee Chiefs under
a non-OIWA/IRA government may be selected, perhaps even removed by the
voters if the Chiefs allow it, but the final decision on seating a Chief
still rests with the Secretary. Under the present arrangement, the
Cherokee Chief can continue to exercise direct control, as federally-
authorized caretaker of Cherokee property interests, under threat of
suspending the current government. History suggests that the current
arrangement of CNO governmental operations makes that drastic prospect
unlikely. CNO has no real incentive to reorganize under OIWA, because a
genuine new Cherokee tribal government would pose a problem for the
current Chief, and the relatively uneventful prosecution of future
Cherokee claims. The authority and government of a Chief of a Cherokee
Tribe reorganized under OIWA and IRA would be "limited to the property
and other benefits to be acquired under the Act," precisely as in the
case of the Chief and government of the UKB. The UKB is that
hypothetical reorganized Cherokee tribal government.
A centralized, independent Cherokee government would have raised
opposition to the continued erosion of property rights, among other
things. Obtaining permission from the people themselves for completing
all the necessary steps in closing down of tribal operations would have
been cumbersome and inconvenient. The legal fiction of a recognized
tribal government had to remain in place, or it would have been readily
apparent that the powers inherent in the people to determine their own
affairs had reverted entirely to them. While Congress did not terminate
Cherokee Nation, the presidentially-appointed Principal Chiefs retained
and exercised only the powers necessary to accommodate the U. S. in the
dismantling of Cherokee Nation.
The official record discloses no significant independence of
thought or action in office by any of the presidentially-appointed
Principal Chiefs. These individuals were not appointed to be advocates
for their people. These were successful Oklahoma business leaders, often
involved in oil and mineral industry, who served as colonial viceroys,
entirely at the will of the U. S. President. Though some appointees
perhaps offered letters of support from tribal people to gain their
appointments, these support letters only assured that their appointments
and activities would create no controversy. None of them was elected to
office or subject to discipline or removal through popular vote.
Business contacts and political affiliations were the most important
considerations in these appointments. Practically speaking, there was
little opportunity for these appointees to occasion any inconvenience
even if they had been so inclined. Most served as Cherokee Nation's
Principal Chief only to sign documents. One served for thirty minutes,
hardly enough to justify a hotel stay. These Cherokee Nation Principal
Chiefs served at the pleasure of presidents, but they never were the
Chiefs of the Keetoowah Indians.
Some congressional acts and decisions strengthened the governmental
powers of the Five Tribes after statehood, particularly in the area of
tribal land rights. In United States Express Co. v. Friedman, 191 F.673
(8th Cir. 1911), the court found that tribal lands the Five Tribes
retained remained Indian Country. In Oklahoma Tax Commission v. Sac and
Fox Nation U. S. Law Week, No. 92-259, 17 May 1993, the U. S. Supreme
Court strengthened that finding. The Appropriations Act of May 24, 1922,
ch. 199, 42 Stat. 552, 575 (at 25 U. S. C. Sec. 124) protected the Five
Tribes from Indian Service mismanagement. The Act allowed the Secretary:
to disburse tribal funds without congressional authorization to equalize
allotments; to make payments to individual members; to provide education
services; to employ attorneys; and to pay salaries and related expenses
of Chiefs, Secretaries, interpreters and mining trustees, without
limiting the use of tribal funds for tribal government expenses, such as
the costs of tribal council meetings.
The Oklahoma Indian Welfare Act (OIWA), the Act of June 25, 1936,
ch. 831, 49 Stat. 1967 (25 U. S. C. Secs. 501-509) extended to Oklahoma
tribes the same opportunities for reorganization which were available to
other tribes throughout the country under IRA. OIWA and IRA reaffirmed,
or "vested by existing law," tribal powers of inherent sovereignty that
Congress had not extinguished expressly. The Cherokee Nation of
Oklahoma, or at least its Principal Chief, was as indifferent to
reorganization in 1937 as it had been in 1934.
Correspondence and studies supporting the legislative history of
the Indian Reorganization Act in 1934, show that the Keetoowahs were
keenly interested in the prospect of reorganization, and turned out in
force (436 of 947 in attendance!), along with representatives of other
Muskogee Area tribes, at a meeting to discuss IRA on 22 March 1934 in
Muskogee:
As was his custom, Collier immediately began to focus upon the
evils of allotment but particularized it to his specific audience.
Using many of the same examples and statistics that he presented to
the Anadarko conference, Collier attempted to show the delegates
how the lands of the Five Civilized Tribes had been decimated over
the years. Furthermore, the average per-capita income among Indians
per year was only forty-seven dollars. No wonder, Collier reasoned,
the vast majority of Indians were living on the remnants of land
owned by relations. Whereas the national wealth had increased, the
wealth of Indians was vanishing.
Collier was emphatic in emphasizing that under the bill no
land would be taken from landholding Indians and given to landless
Indians. The sensitivity of the land issues, along with a strong
pitch for the economic-development provisions of the bill, occupied
most of Collier's attention during the season.
One of Collier's old nemeses, Joseph Bruner, attended the
Muskogee meeting. Bruner, a dedicated assimilationist, headed up
the National Indian Confederacy, which strongly opposed the bill.
Bruner, however, was not given much of an opportunity to perform at
the meeting. When the Keetoowah Society introduced a resolution
praising Collier for coming to the session and calling for the
conference to endorse his bill, Bruner raised a point of order
arguing that the Keetoowah was only a clan and not a tribe and
could not offer such a motion. The floor rejected this point,
stating that the resolution had already been presented. Bruner then
moved to adjourn but was ignored by the Chair. Earlier Bruner had
asked a question concerning employment of Indians and whether they
would be as capable as whites. Walter Woehlke responded for
Collier, who had lost his voice by this time, brusquely noting that
the question had been answered fully and exhaustively earlier. . .
. Collier succeeded in convincing a number of delegates of the
wisdom of supporting his bill. The Eastern Emigrant and Western
Cherokees passed a resolution favoring the bill. . . . Considerable
opposition continued to flourish among the proassimilationist
Indians, but Collier must have been pleased with the Oklahoma
achievements.(82: I, pp. 114-115)
Commissioner John Collier, in writing to the tribes and to members of
Congress in the Muskogee area, explained, "land holdings shall be
permanently protected; . . . . now lands shall be added, and shall be
permanently protected; that tribes may organize for self-government,
taking on more power or less, according to their own choice; that new
Federal court facilities shall be extended to Indians."(9: IV) The
Amreican Indian Policy Review Commission found in 1977 that this promise
was never fulfilled, except in those cases where Congress expressly
provided for the purchase of lands for tribes organized under OIWA and
IRA.
Oddly, John Cochran, Vice-President of the Kee-Too-Wah Society,
Inc. fabricated a telegram on 6 April 1934 and wired it at Hulbert,
Oklahoma, to make it appear that Secretary James Duncan, Vice-President
John Cochran, President Gabriel Terrapin of the Kee-Too-Wah Society,
Inc., and other Cherokee leaders and their constituencies all opposed
IRA. Commissioner Collier responded with another pleading letter, and
Secretary Duncan of the Kee-Too-Wah Society, Inc., responded with an
apoplectic, handwritten note of protest. Duncan stated:
Allow me to say further that our Society has among its laws what is
called an Executive Committee of five clothed with authority to
pass on and transact any business that may come up when the council
is not in session. I am chairman of that committee and the day
before your meeting in Muskogee I wrote up a resolution indorsing
the Wheeler-Howard bill as far as we knew of it at that time and
the Committee signed it and while you were speaking in Muskogee I
handed this resolution to Mr. Houston B. Tehee with the request
that he hand it to you and he told me he would do so. You should
find this resolution among your papers.(4: IV; 5: IV; 7: IV; 8:
IV)
Duncan shrewdly pointed out that the President would not have signed
anything only as "Gabriel," and that there was no real return address.
Needless to say, at the next Council meeting, Mr. Cochran's fellow
Council members and constituents crawled him up one side and down the
other. The Committee of the Lost Club, composed of Dawes enrollees of
the Five Tribes, opposed reorganization (Letter, 30 March 1934,
Chairperson Castella Anderson, Lost Club), in a note to Commissioner
John Collier, who responded on 20 April 1934 with a most conciliatory
memo, saying, "Surely there must be some provisions of the bill which
meet with your approval." He turned out to be dead wrong about the
majority of Cherokee descendants.
Commissioner John Collier issued a Statement on the progress toward
the education of Indians on the benefits of the IRA, speaking of the
nine conventions over seventeen days in which 6,000 Indians had
participated to learn the objectives and purposes of the Wheeler-Howard
Bill. He had found widespread support, while:
We have also learned that almost without exception the opposition
stirred up among the Indians against this legislation has been
fomented and fanned by the crass, unadulterated self-interest of
white and Indian persons who are afraid, often without reason, that
under the proposed act they will lose advantages they now
possess.(10: IV)
The second paragraph of his address is of particular interest, because
he made the Keetoowahs his star pupils:
The Wheeler-Howard bill was strongly and enthusiastically
endorsed by many delegations representing tribes with predominantly
Indian blood, tribes which have long tasted the bitter fruit of the
allotment law through the operations of which the bulk of their
members has become landless and impoverished. The Kee-tooh-wa . .
. [he mislabeled the Corporation as "Night Hawk"] society of the
Cherokees in eastern Oklahoma, a society of 6,000 members, mostly
descendants of the Cherokees who bitterly resisted allotment thirty
years ago, transmitted a strong endorsement of the proposed
legislation.(10: IV)
Clearly proud of the Keetoowahs' resistance to anti-reorganization
propaganda, he quoted one of the Cherokee representatives at the
Muskogee conference, who replied archly to claims that the IRA was a
"back to the blanket" bill, "What must we return to? We never had the
blanket habit."
The question remains: WHY DID CHEROKEE NATION NOT SEIZE THE
OPPORTUNITY TO REORGANIZE UNDER OIWA AND IRA? Part of the answer is
that the Cherokee Nation, consisting of all its adopted elements and the
freedmen, was not the same as the Cherokee Tribe of Indians that
consisted aboriginally of Cherokees by blood. In Cherokee Nation v.
United States, 80 Ct. Cl. 1 (1932), the Court of Claims determined that
Cherokees by blood, calling themselves "the Cherokee Tribe of Indians,"
excluding the various tribes such as the Delawares and Shawnees, and the
freedmen and white adoptees of the old Cherokee Nation, had no standing
to bring a suit in the Court of Claims under the special Cherokee
jurisdictional Act of March 19, 1924 (43 Stat. 27). The Cherokees by
blood group, united as they were solely by ancestry, was only a
descendancy class, not a cohesive governmental entity. The rest of the
answer is in the Department of the Interior's Indian Organization files.
A series of Land Division and BIA memoranda concluded that the Roll of
Cherokee Nation of Oklahoma was closed 4 March 1907, and became final of
that date, as provided by section 2 of the Act of April 26, 1906 (34
Stat. L. 137); and so:
Based upon this final roll the lands of the Cherokee Nation have
been allotted to the Cherokees by blood, the freedmen, intermarried
whites and other citizens of the Nation, and all but a small
portion of the tribal assets distributed.
Section 63 of the Act of July 1, 1902, . . . provided that the
tribal government of the Cherokee Nation should not continue longer
than March 4, 1906 [Section 58, Agreement with the Cherokee Nation,
April 1, 1900]. This provision of law was repealed by section 28 of
the Act of April 26, 1906 (34 Stat. L. 137), which provided that
the tribal existence and present tribal governments of the several
tribes were thereby continued in full force and effect for all
purposes authorized by law, until otherwise provided by law. It was
further provided by the said section that no act, ordinance or
resolution, save resolutions of adjournment, of the tribal council
or legislature, should be valid until approved by the President. No
further provisions of law affecting the tribal existence and the
then existing tribal government, . . . have since been enacted by
Congress. The Oklahoma Welfare Act of June 6, 1936 (49 Stat. 1967)
does not repeal any of the provisions of the Act of April 25, 1906,
which authorized the continuation of the Cherokee Tribal
Government.
It is not believed that the Oklahoma Welfare Act may be used
as authority to reorganize the existing tribal government of the
Cherokee Nation. On the contrary, the Act appears to contemplate
the creation of a new, separate and distinct organization, to adopt
its own constitution and bylaws and to procure a charter of
incorporation without regard to the existing government. With
respect to the existing tribal government, the freemen and
intermarried whites, as well as other citizens of the Cherokee
Nation, shown on the final rolls, have a voice in the limited
tribal affairs which remain. If it is desired to deny the freedmen
and intermarried whites the right to vote on the proposed
constitution and bylaws and charter of the new organization to be
created under the Oklahoma Welfare Act, it is believed that the
powers and jurisdiction of the new organization should be limited
to the property and other benefits to be acquired under the Act.
Those persons whose names are one the final rolls of the Cherokee
Nation have certain rights in the remaining assets of the tribe,
and if any attempt were made to deny them the right to vote on
matters which may affect such rights, it would doubtless give rise
to litigation.(12: IV)
When the Solicitor inquired about the status of the Five Tribes in 1938,
Commissioner John Collier's response accompanied a copy of the MEMO of
25 October 1937 (enclosure 1310901). The Muskogee Area Director, Virgil
N. Harrington had a note to file on this particular Memorandum dated 6
December 1962. Harrington did not press the Principal Chief to
reorganize. Only with the Bellmon Bill and the Harjo decision in 1976
did the Five Civilized Tribes have the legislative and judicial
foundation to pursue reorganization, as Creek Nation did in 1979.
The Act of July 3, 1952, ch. 549, 66 Stat. 323 (at 25 U. S. C. Sec.
82a) recognized the authority of the Five Tribes to contract to encumber
tribal funds or property with the approval of the Secretary. The Act of
Oct. 22, 1970, 91st Cong., 2nd Sess., P. L. 91-495, 84 Stat. 1091, the
"Bellmon Bill," "Authorizing Each of the Five Civilized Tribes of
Oklahoma to Select Their Principal Officer, and for Other Purposes," is
described in greater detail below.
While many members of Cherokee Nation abandoned their distinct
identity as Indians after 1906, those who always had opposed
assimilation and the erosion of sovereignty preserved a shadow social
order and government as best they could at the local and regional level.
Keetoowah people remembered their inherent sovereignty after the
dissolution of Cherokee Nation, and clung to their tribal relations as
a fractious but determined body, dedicated to the preservation of old
"Keetoowah Cherokee" values. When the UKB sought to reorganize under
OIWA and IRA in 1937, they had to obtain permission from Congress to
adopt a Charter under Section 3 of the OIWA, and a Constitution and By-
laws under Sections 16 and 19 of the IRA. Congress consented, and
validated the Band's historical existence, in the Act of August 10,
1946.(*: IV)
In summary, the Curtis Act (1898) rendered civil laws of the
Cherokee Nation unenforceable in Federal courts and abolished the tribal
court. The Cherokee Agreement of 1901 did not refer to civil
jurisdiction, but stipulated that the tribal court was not revived or
re-established. The Five Tribes Act of 1906 did not mention civil
jurisdiction or tribal courts, but abolished taxation, suggesting that
the CNO lacked present tax authority. The 1906 Act also stipulated that
tribal laws and contracts affecting property of the Cherokee Tribe are
subject to the approval of the President of the U. S. It remains
uncertain on what authority that CNO may enact "taxation and regulation"
ordinances or laws, or to what extent CNO may enact civil laws falling
within tribal jurisdiction, due to earlier Acts conferring exclusive
jurisdiction on Federal courts. The CNO does not appear to have
independent authority to re-establish a court system, but has received
Federal authorization to run courts within the 14 county area of the old
Cherokee Nation. The authority of the "judicial appeals tribunal" of
Article 7 CNCA 1976 remains dubious. It appears that all laws of CNO
must have the approval of the President or his representative (the
Secretary) before becoming valid. All contracts affecting any property
of CNO also require similar approval. It appears very likely that since
at least 1979, Congress has labored under the false impression that
special dispensations and revesting of sovereignty on CNO were
justified, in light of their presumed reorganization under OIWA and IRA.
CNO's use of backdoor routes to regaining aspects of sovereignty is not
as objectionable as their efforts to terminate the UKB with no thought
of due process.

THE UNITED KEETOOWAH BAND, IRA (1934), OIWA (1937), AND THE FREDERIC L.
KIRGIS "KEETOOWAH -- ORGANIZATION AS BAND" OPINION (1937)

During the early years of reorganization, the Solicitor's
individual findings that any particular group constituted a "tribe" or
"band" relied on one or more of the following tests, regardless whether
the group had a land base: (1) the group had treaty relations with the
United States; or, (2) the group had been named as a tribe by an Act of
Congress or Executive order; or, (3) it had held collective rights in
tribal lands or funds; or, (4) it had been treated as a tribe or band by
other Indian tribes; or, (5) it had exercised political authority over
its members, through a tribal council or other governmental form.
Secondary factors included proof that Congress had appropriated any
funds for the group; or, that the group showed social solidarity; or,
that ethnological and historical considerations supported the claim of
tribal existence. The first three factors give weight given to previous
congressional and executive recognition. These and the fourth criterion
indicate Federal action or other identification of the group as distinct
from any other. The fifth criterion concerned the group's exercise of
political authority.(80: I)
The other secondary factors involve the question of tribal
character, as defined in Montoya v. U. S. (1908):
By a 'tribe' we understand a body of Indians of the same or a
similar race, united in a community under one leadership or
government, and inhabiting a particular though sometimes ill-
defined territory.
Thus, common American Indian ancestry, common community and political
leadership, and association historically with a particular territory
were essential in 1937, as now, to a determination of tribal
recognition, or the acknowledgment of tribal existence.
Congress intended to preserve the benefits of the IRA, including
especially the benefits of 25 U.S.C. 465, to Indians who were members of
a recognized tribe "under Federal jurisdiction" on June 1, 1934,
including land or financial supervision. Whether a tribe consists of a
single entity or of several autonomous bands was not determinative. The
Secretary could determine that Federal supervision should be through the
vehicle of one overall entity.
The Keetoowah Indians had continuing if disorderly social and
governmental activity at the local level even after the dissolution of
Cherokee Nation, while the Nation lay moribund, unable to act, only
"governed," ad hoc, at the President's pleasure. The common
misunderstandings of those who ascribe to the recent representations of
the "Nighthawk" Keetoowah Society appear to rest on the premise that all
Keetoowahs owe allegiance to the "Nighthawk Keetoowah Society," of which
the UKB is only a splinter group. However, a confederation, or coalition
government, against whom the "Nighthawk" organization was aligned,
became the base of the UKB in 1939.
In conducting studies supporting the legislative history of the
Indian Reorganization Act in 1934, the BIA found that of the Five
Tribes, only Cherokee Nation's residual executive branch had fulfilled
its purpose of essentially finishing off its Nation's business, as
Congress had contemplated in passing the Curtis, Dawes and related
Acts.(2: IV) Cherokee Nation Dawes enrollees and descendants had no
direct role in the selection of their own token Principal Chiefs, who in
essence were the Executors of the deceased Cherokee Nation's estates.
The old Cherokee Nation was at an end by 1934, as it was in 1907 in
principle. It should be no surprise that by 1934, neither the Principal
Chiefs of Cherokee Nation, nor the general class of some 39,000 Dawes
enrollees and their descendants, showed any interest in reorganizing
under the Indian Reorganization Act. Only the various Keetoowah factions
showed interest and purpose related to reorganization, for the Keetoowah
Band.
The Indian Reorganization Act did not attempt to change the status
quo of Indians to whom the United States already had obligations. In
describing Indians which he considered to be wards, Senator Wheeler
spoke of "Indians whose property was managed by the United States" [U.
S. Senate, Senate Committee on Indian Affairs, Hearings on S. 2755, "To
Grant to Indians Living under Federal Tutelage the Freedom to Organize
for Purposes of Local Self-Government and Economic Enterprise," 73rd
Cong., 2nd Sess (1934), 264); see 145: III], of "enrolled Indians"
(Senate Hearings at 264), of wards (Senate Hearings at 263), and of
"Indians under the supervision of the United States"(Senate Hearings at
266). Senator O'Mahoney observed that in his opinion the phrase "member
of any recognized Indian tribe" would include the Catawbas whom he
described as a group living together as Indians although they were not
half-bloods and were apparently being ignored by the Federal government.
Wheeler felt that the definition of "Indian" should be amended to
exclude such groups. Collier suggested:
Would this not meet your thought, Senator: After the words
"recognized Indian tribe" in line 1 insert "now under Federal
jurisdiction?" That would limit the Act to the Indians now under
Federal jurisdiction, except that other Indians of more than one
half blood would get help.(145: III, p. 266)
>From this, it is clear that the drafters of the IRA indeed originally
intended to exclude from the IRA some groups which could be considered
Indians in a cultural or governmental sense. They did not, however,
intend to use the Act to cut off Indians to whom the Federal government
had already assumed obligations, i.e., those already under Federal
jurisdiction, including those receiving collective services as dependent
Indian communities, or whose members had received services as wards/
persons who had not abandoned tribal relations, where the tribes were
presumed still politically intact, however tenuously.
The specific phrase "Federal jurisdiction" is nowhere else defined
in the legislative history. Instead, the history refers to "Federal
supervision," "Federal guardianship," "Federal tutelage." There is some
evidence that the term "Federal supervision" was tied to management of
property rights.(145: III) Even so, Senator Thomas stated that
appropriated money (as opposed to a land base) could be a sufficient
basis for Federal supervision, since the supervisory activity was tied
to management of property rights, regardless whether those rights were
held in common with another Indian group.(145: III, at 79) Indeed, at
least twice (with respect to Alaska Natives and to Oklahoma Indians),
Collier took the position that landless Indians and Indians in states
with little or no reservation lands were entitled to the benefits of 25
U.S.C. 465.(145: III)
This careful awareness of the difficulty of applying a uniform
definition of "tribe" is essential to an understanding of the truly
"political" nature of the Federal determination of what is a "tribe."
Given the deference to which that complex political question is entitled
and the historical basis for a conclusion of tribal existence, the
Commissioner's and Secretary's designation of the Ione Band as an Indian
tribe represents informed decision-making and an attempt at concerned
management.
Congress eventually determined, in defining both Indian and Tribe,
to adopt the present language of Section 19 of the IRA:
The term "Indian" as used [in this Act] shall include all persons
of Indian descent who are members of any recognized Indian tribe
now under federal jurisdiction, and all persons who are descendants
of such members who were, on June 1, 1934, residing within the
present boundaries of any Indian reservation and shall further
include all other persons of one half or more Indian blood . . .
the term "tribe" whenever used [in this Act] shall be construed to
refer to any Indian tribe, organized band, Pueblo, or Indians
residing on one reservation.
Therefore, 25 U. S. C. Section 479 compels one to conclude that the
terms "Indian" and "tribe" must be read together. The term, "Federal
recognition" as applied to an Indian tribe means that there is an entity
in being which the United States has recognized, through an act of
Congress, or through an act of the Executive with the advice and consent
of the Senate (in the case of a treaty before 1871), or as authorized by
Congress thereafter.
In his 1942 discussion of the scope of tribal self-government in
the Handbook of Federal Indian Law, Felix Cohen wrote:
Perhaps the most basic principle of all Indian law, supported by a
host of decisions hereinafter analyzed, is the principle that those
powers which are lawfully vested in an Indian tribe are not, in
general, delegated powers granted by express acts of Congress, but
rather inherent powers of a limited sovereignty which has never
been extinguished. Each Indian tribe begins its relationship with
the Federal Government as a sovereign power, recognized as such in
treaty and legislation.(80: I, p. 122; Cohen's italics)
The issues of Federal recognition are whether a tribe exists, and which
branch of the Federal government can recognize a tribe. In Cohen's
discussion of the legal status of Indian tribes, he remarks:
The question of tribal existence, in the legal or political sense,
has generally arisen in determining whether some legislative,
administrative, or judicial power with respect to Indian "tribes"
extended to a particular group of Indians.
The most basic of these issues has been the constitutional
issue arising from the grant of power to Congress to regulate
"commerce with . . . the Indian Tribes." The Supreme Court has, in
a number of cases, taken the position that the applicability or
constitutionality of congressional legislation affecting individual
Indians, and the inapplicability or unconstitutionality of state
legislation affecting such individuals, depended upon whether or
not the individuals concerned were living in tribal relations.
While thus making the validity of congressional and
administrative actions depend upon the existence of tribes, the
courts have said that it is up to Congress and the executive to
determine whether a tribe exists. Thus the "political arm of the
Government" would seem to be in a position to determine the extent
of its power. In this respect the question of tribal existence and
congressional power has been classed as a 'political question'
along with the recognition of foreign governments and other issues
of international relations.
Thus in the case of United States v. Holliday, the Supreme
Court held that federal liquor laws were applicable to a sale of
liquor to a Michigan Chippewa Indian, despite a treaty provision
looking to the dissolution of the tribe, for the reason that the
Interior Department regarded the tribe as still existing.(at p.
419)
The Court declared in United States v. Holliday, 70 U.S. (3 Wall.) 407,
419 (1865), the Supreme Court stated:
The facts in the case certified up with the division of opinion,
show distinctly "that the Secretary of the Interior and the
Commissioner of Indian Affairs have decided that it is necessary,
in order to carry into effect the provisions of said treaty, that
the tribal organization should be preserved." In reference to all
matter of this kind, it is the rule of this court to follow the
executive and other political departments of the government, whose
more special duty is to determine such affairs. If by then those
Indians are recognized as a tribe, this court must do the same.
(at p. 419)
Whether a group of Indians exists as an Indian tribe is a
political question. Felix Cohen explained:
While thus making the validity of congressional and administrative
actions depend upon the existence of tribes, the courts have said
that it is up to Congress and the executive to determine whether a
tribe exists. Thus the "political arm of the government" would seem
to be in a position to determine the extent of its power. In this
respect the question of tribal existence and congressional power
has been classed as a "political question" along with the
recognition of foreign governments and other issues of
international relations.[Cited: United States v. Boyd, 83 Fed. 547
(4th Cir. 1897), in Cohen (1942), p. 268]
In implementing the Indian Reorganization Act of 1934, the Secretary had
to decide which particular groups constituted tribes. Cohen wrote:
The question of what groups constitute tribes or bands has been
extensively considered in recent years by the administrative
authorities of the Federal Government in connection with tribal
organization effected pursuant to section 16 of the Act of June 18,
1934. A showing that the group seeking to organize is entitled to
be considered as a tribe, within the meaning of the act, is deemed
a prerequisite to the holding of a referendum on a proposed tribal
constitution, and the basis for such a holding is regularly set
forth in the letter from the Commissioner of Indian Affairs to the
Secretary of Interior recommending the submission of a tribal
constitution to a referendum vote. In cases of special difficulty,
a ruling has generally been obtained from the Solicitor for the
Interior Department as to the tribal status of the group seeking to
organize. The considerations which, singly or jointly, have been
particularly relied upon in reaching the conclusion that a group
constitutes a "tribe" or "band" have been:
(1) That the group has had treaty relations with the United
States.
(2) That the group has been denominated a tribe by an act of
Congress or Executive order.
(3) That a group has been treated as having collective rights
in tribal lands or funds, even though not expressly designated
a tribe.
(4) That a group has been treated as a tribe or band by other
Indian tribes.
(5) That the group has exercised political authority over its
members, through a tribal council or other governmental form.
Other factors considered, though not conclusive, are the existence
of special appropriation items for the group and the social
solidarity of the group.(Pp. 270, 271)
A land base is not required for Federal acknowledgment. There may be
reservations of property rights [(U.S. v. Creek Na. 295 U.A. 103 (1935)]
and sovereign powers over water rights [Winters v. U.S. 207 U.S. 564
(1908)], hunting and fishing rights [Menominee Tribe v. U.S., 391 U.S.
404 (1968)], legislative, judicial and police powers over members [U.S.
v. Wheeler, 435 U.S. 313 (1978); Oliphant v. Suquamish, 535 U.S. 191
(1978)], including the power to determine membership [Martinez v. Santa
Clara Pueblo (1978)], and other aspects of internal sovereignty.
L.R. Weatherhead observed:
the term 'tribe' is used to describe a vast assortment of socio-
political arrangements [fn. 27, "Because the socio-political
situations in which indigenous Americans were found were varied and
numerous, references . . . to the term "'tribe' in the
ethnohistorical sense" refers not to a stock anthropological
definition of "tribe" but rather to the peculiar history of each
Indian group. Thus, in speaking of reconciling the legal and
ethnohistorical meanings of "tribe," we are talking about driving
a legal standard flexibility enough to include the different
social, political and cultural arrangements of each American Indian
group.] If carefully defined to fit the attributes of one group,
the term would constitute the grossest sort of ethnohistorical
fallacy as to other groups. . . . the kinds of political and social
organizations ranged from that of the great League of the Iroquois,
whose structure is said to have influenced the Framers of the
Constitution of the United States, to the extended families or
clans that were the Northwest coastal tribes. The latter existed
without formal political structures, without concepts of
territorial sovereignty, and with rudimentary concepts of
property.(Weatherhead 77: I, p. 1)
At p. 6, citing U. S. Indian Claims Comm'n, Final Report, Sept. 30,
1978, at 10, quoting from A.L. Kroeber, Nature of the Land Holding
Group, 2 Ethnohistory 304 (1955), and U.S. v. Washington, 384 F.Supp.
312 (W.D.Wash. 1974), aff'd. 520 F.2d 676 (9th Cir. 1975), cert. den.,
423 U.S. 1086 (1976), the author continued:
The expression "tribe" often has been a tricky one for experts in
Indian affairs. The term "nation" was most used in the seventeenth
and eighteenth centuries and was a more appropriate designation
than tribe because it referred more to a cultural than a political
unity. Tribe came to be used generally after the federal government
began exclusively handling Indian relations, Indians, said
anthropologist A.L. Kroeber, were distinguished as they lived in a
"tribal condition" or in a settled "civilized condition."Tribes
were treated as sovereign-state tribes, for it made dealings more
convenient and practical. "It was we caucasians," said Kroeber,
"who again and again rolled a number of obscure bands or minute
villages into the larger package 'tribe,' which we then putatively
endowed with sovereign power and territorial ownership which the
native nationally had mostly never claimed."(Weatherhead 77: I, p.
1)
Congress has promulgated a variety of definitions of "tribe" so that any
discussion of a single standard of tribal existence becomes meaningless,
premised as it is on the view that there is no single definition.
However, in applying legislation to Indians, courts and Interior
consider limitations on Federal power over Indians, expressing that
concern in the resolution of the question of tribal existence. There is
a basic concept of tribal existence not explicit in the congressional
exercise of authority over Indians. Congress has held back from defining
"tribe" and has allowed Interior to promulgate regulations for
determining tribal existence, partly reflecting earlier case law and
administrative practice, but in other ways, setting off on a new
track.(Weatherhead 77:I, p. 7)
Historically recognized tribes which have a documented political
relationship with the United States, but are not recognized by the
Bureau of Indian Affairs, constitute a special class of tribes, between
presently "recognized" tribes and tribes which never have been
recognized (Mashpee v. New Seabury Co. 592 F.2d 575 (1st Cir.), cert.
den., 100 S.Ct. 138 (1979). The Federal Acknowledgment Process
regulations at 25 C.F.R. 83.1, et seq. fail to accommodate such tribes.
That the United States fails to carry out its duties as trustee does not
sever the trust relationship. A tribe should not be penalized due to the
Federal government's failure to fulfill its trust responsibilities.
Moreover, the U. S. Supreme Court has held that even "long lapse(s)
in Federal recognition" do not destroy the Federal power to deal with
recognized tribes. United States v. John, 437 U. S. 634, 652-653 (1979).
In the mid-1950s, during termination, the United States began to
distinguish between "recognized" and "unrecognized" tribes. BIA
recognition decisions frequently were made on an ad hoc basis. The
result, as reflected in 1 American Indian Policy Review Commission,
Final Report (May 1, 1977), was the unavoidable conclusion that:
Trying to find a pattern for the administrative determination of a
federally recognized Indian tribe is an exercise in futility. There
is no reasonable explanation for the exclusion of more than 100
tribes from the federal trust responsibility.(p. 462)
Just before leaving office and excepting a consulting contract with CNO
in January, 1980, Assistant Secretary Forrest Gerard penned a memorandum
rescinding the May 1979 order of Assistant Deputy Commissioner Seneca.
The May 1979 Seneca order had required CNO to acquire a concurring
resolution from UKB in order to apply for programs under P. L. 93-638 as
a "tribal organization." Congress excluded the UKB from participation in
Federal programs in the northeastern counties of Oklahoma in 1991,
except to the extent that members of the UKB still may elect to
affiliate individually with CNO, and thereby receive services. The
termination of the UKB in 1991 for the purposes of receiving services in
the northeastern counties of Oklahoma was premised on the refusal of
Congress and the BIA to acknowledge the legislative intent of the 1934,
1936 and 1946 Acts, and the record of the interpretation and
implementation of those Acts.
The 1937 Wisdom report, cited extensively before, largely was the
result of the Society, Inc.'s initiative to obtain the right of the
Keetoowah Indians to reorganize, using the Keetoowah Society, Inc., as
the vehicle. Wisdom failed to mention the existence of the 20 September
1905 Federal Charter of the Keetoowah Society, Inc., although that
document confirmed and expressly recognized the existence of the
Keetoowah Indian community as a political entity. The Keetoowah Society,
Inc., requested permission to reorganize under Section 3 of the Indian
Reorganization Act in 1937, but neglecting the existence of a current
valid Charter, the Department of the Interior rejected the request.
Section 3 of the Oklahoma Indian Welfare Act states:
Any recognized tribe or band of Indians residing in Oklahoma shall
have the right to organize for its common welfare and to adopt a
constitution and bylaws, under such rules and regulations as the
Secretary of the Interior may prescribe. The Secretary of the
Interior may issue to any such organize group a charter of
incorporation, which shall become operative when ratified upon a
majority vote of the adult members of the organization voting:
Provided, however, That such election shall be void unless the
total vote cast be at least 30 per centum of those entitled to
vote. Such charter may convey to the incorporated group, in
addition to any powers which may properly be vested in a body
corporate under the laws of the State of Oklahoma, the right to
participate in the revolving credit fund and to enjoy any other
rights or privileges secured to an organized Indian tribe under the
Act of June 18, 1934 (48 Stat. 984): Provided, That the corporate
funds of any such chartered group may be deposited in any national
bank within the State of Oklahoma or otherwise invested, utilized,
or disbursed in accordance with the terms of the corporate
charter.(Act of June 26, 1936, 49 Stat. 1967, Section 3)
Acting Solicitor Frederic L. Kirgis, also unaware of the Keetoowah
Society, Inc.'s 20 September 1905 Charter, advised the Commissioner in
Keetoowah -- Organization as Band:
A question has been raised by the Oklahoma Regional Coordinator in
charge of organization [Monahan] whether the Keetoowah Society of
Oklahoma can be considered a band for the purposes of organization
under the Oklahoma Indian Welfare Act. Keetoowah Society is an
organization of full-blood Indians who originated almost a century
ago for the preservation of Indian culture and traditions. A secret
society representing the most conservative portion of the Cherokee
Indians, it has had several specific objectives, principally
opposition to slavery and subsequently, opposition to allotment.
Facts concerning its origin, organization and purpose are set forth
in a report compiled by Mr. Charles Wisdom, anthropologist. He
states that while the name is derived from an ancient Keetoowah
town or band of Cherokee Indians in what is now North Carolina,
there is no historical connection between the society and the band;
there exists only a cultural and mystical relationship with the
early group. Due to differences in philosophy the society is now
divided into six factions. Most of these faction have a membership
extending over various district and one or two have strong network
of organization over the Cherokee region.
The Keetoowah Society, Inc., had applied for reorganization apart from
the Keetoowah Indians as a body; that proposal for separate
reorganization could not stand. Kirgis continued:
In my opinion neither the Keetoowah Society nor any of its
factions can be considered a band, much less a "recognized band"
under section 3 of the Oklahoma Indian Welfare Act.
The primary distinction between a band and a society is that
a band is a political body. In other words, a band has functions
and powers of government. It is generally the historic unit of
government in those tribes in which bands exist.(Opinions of the
Solicitor of the Department of the Interior Relating to Indian
Affairs: 1917-1974, Vol. I (Washington, D. C.: U. S. Department of
the Interior, 1975), p. 774)
Kirgis did not identify which Keetoowah Society he meant in referring to
"the Keetoowah Society." Among the Keetoowahs, according to Wisdom's
study, were tribal towns, factions, and factions of factions, besides
the Corporation. It appears unlikely that Kirgis knew of or understood
the significance of the Corporation's charter. Kirgis referred to the
Keetoowah Society, Inc.'s history without referring to the "Inc." The
Nighthawk faction had originated from the Keetoowah Society just before
the Society incorporated. As to the various factions, societies, and
lesser units of the Keetoowah Band this characterization is undoubtedly
correct. Kirgis continued:
Because of Federal intervention aimed to destroy tribal
organization many recognized bands have lost most if not all of
their governmental functions. But their identity as a political
organization must remain if the group of Indians have be considered
a band or tribe.
This character of a band as an existing or historical unit of
Indian government seems to be recognized in sections 16 and 19 of
the Indian Reorganization Act [1934] which refer to "powers tested
in any tribe or band". In the administration of the act,
organization of tribes or bands have included such limited powers
of government as remain and are considered appropriate. It is this
feature which distinguishes organization under section 3 of the
Oklahoma Act from organization or voluntary associations under
section 4 (Opinions of the Solicitor of the Department of the
Interior Relating to Indian Affairs: 1917-1974, Vol. I (Washington,
D. C.: U. S. Department of the Interior, 1975), p. 774)
Kirgis found that the Keetoowahs were deeply split into at least
factions of which the Keetoowah Society, Inc. was only one, incapable
alone representing or of governing all the other factions. The Frederic
L. Kirgis Keetoowah Society, Inc., Opinion, 29 July 1937, was a
Memorandum to the Commissioner of Indian Affairs from the Department of
the Interior. In a determination for the Commissioner dated 24 April
1944, Assistant Commissioner of Indian Affairs, Tribal Relations Branch,
D'Arcy McNickle revisited the Solicitor's advice and systematically tore
it apart. By 1944, then, the Department not only had repudiated the
Kirgis Opinion, the Department had decided to make the Solicitor rewrite
it in light of the later fact discoveries, or to get Congress to pass a
simple bill clarifying the Band's status. The 1946 Act suggests the plan
of action Acting Secretary Fortas chose. Obviously, the Department
decided that if the Solicitor and their own in-house anthropologist were
too indolent and incompetent to check their facts, there was no use
bothering with them.
Charles Wisdom, an ethnographer and ethnohistorian, conducted field
studies and submitted findings to the Department of the Interior. There
is little in his narrative to indicate that he wrote the narrative with
the informed consent or cooperation of the various groups. Later
correspondence suggests that he never submitted the manuscript to the
Keetoowah factions for review. On the contrary, his narrative shows he
consistently relied, perhaps far too heavily for the sake of his own
objectivity, on the observations of Levi Gritts, Vice-Chief of the
Keetoowah Society, Inc.(See, generally, Wisdom, 14: I) In his "Keetoowah
-- Organization as a Band" Solicitor's Opinion of 1937, Frederic L..
Kirgis referred to the Wisdom study in passing, but largely blurred the
fact issues, relying entirely and uncritically on the Wisdom study to
conclude that the Keetoowah Society, Inc., was supposedly the Keetoowah
"Band."[Opinions of the Solicitor of the Department of the Interior
Relating to Indian Affairs: 1917-1974, Vol. I (Washington, D. C.: U. S.
Department of the Interior, 1975), p. 774)
Wisdom's Keetoowah study consisted almost exclusively of the
observations of an extremely biased informant. Levi Gritts already was
running hard, and losing badly, in his efforts to gain control over
Keetoowah organization, and the document reads like a piece of campaign
literature: brag, smear, and all. As a result, the Wisdom study
inevitably was skewed to put the Keetoowah Society, Inc., in the best
possible light, while depicting all other groups as inferior or
subordinate.
Ben Dwight, Organization Field Agency, made a peculiar discovery in
June 1939: that the Keetoowah Society, Inc., held an 20 September 1905
Charter from the Federal Territorial Court in Tahlequah, identifying the
Band as a Polity. Monahan discovered then what Kirgis had ignored: that
the 1905 Charter of the Keetoowah Society, Inc., had the approval of the
U. S. District Court in Tahlequah. Monahan concluded that all of the
Keetoowahs might organize under its provisions, because under authority
of that Charter, the Keetoowahs could apply the charter to their tribal
towns, of which there remained several throughout Cherokee
Nation.(Letter, 2 August 1939, A. C. Monohan, Regional Coordinator for
Organization for the BIA to DAiker, Assistant Commissioner for Indian
Affairs) Levi Gritts visited A. C. Monahan, Regional Coordinator for
Organization for the BIA, in Oklahoma City in 1939, to evaluate the
remaining alternatives. Gritts said a number of his group still wanted
to reorganize under OIWA and IRA as a tribe.
Though the Keetoowah Society, Inc., had a Federal charter, and
though the corporation nearly had succeeded in keeping all the Keetoowah
factions together in the 1920s under an Executive Council and Levi
Gritts, by 1937, the Society, Inc., still did not speak for all the
Keetoowah people who wanted to participate in reorganization in 1939. As
the Organization Field Agents found in working with the Keetoowahs after
1937, the Society, Inc., and the "Nighthawk," or Original Keetoowah
Society, were only two highly visible and distinct factions, neither of
which could speak anymore for all Keetoowahs, or claim sole secular
authority over the Keetoowah Indians. The membership claims of these two
organizations probably were exaggerated, reflecting the shifts or dual
or multiple affiliations of members through the years, while both
claimed to represent all the true Keetoowah Cherokee people. The
Keetoowah Society, Inc., standing alone, was not a band within the
meaning of the Act, but appeared to be a political entity. The leaders
of the Keetoowah Society, Inc., and the "Nighthawk" organization later
insisted upon remaining independent of the UKB, because the other
factions refused to hand control over either to the Keetoowah Society,
Inc., or to the descendants of Redbird Smith in the "Nighthawk"
organization. However, the members followed their own preferences,
abandoning both organizations for the UKB.
In 1939, a new coalition government of Keetoowah Indians formed
under the leadership of some of the Keetoowah Society, Inc.'s, prominent
members. The members were individuals who were primarily Cherokee by
blood, interested in maintaining a political and cultural identity as
Keetoowah Cherokee Indians, most of whom already were affiliated
individually with one (or more) of the various Keetoowah factions.(*:
IV)
Superintendent A. M. Landman at Five Tribes Agency sent a general
notice to the Keetoowahs dated 22 March 1939 (Fort Worth NARA):
At the request of some members of the different Keetoowah
groups, announcement is hereby made that a joint meeting of the
various Keetoowah groups will be held at the Lyons Community house,
. . . , Thursday and Friday, March 30 and 31, 1939.
The purpose of this joint Keetoowah meeting is to hear a
detailed explanation of the various provisions of the Oklahoma
Indian Welfare Act and to discuss matters of common interest to all
the groups.
It is hoped that each Keetoowah group will send a delegation
to this meeting so that full information can be carried back to the
respective areas from which the delegation may come. . . . It will
be necessary that each representative coming to the meeting make
his own arrangements for food and staying over night.
Following this meeting, the UKB called a Convention set for 9 June 1939
at Lyons Community House, to vote for or against a provisional
constitution, prepared by a committee composed of Daniel Hummingbird,
John Muskrat, John Flute, Wilson Hummingbird, and Ben Bird Chopper. The
half-blood Dawes Commission enrolled Cherokees and their descendants
aged 21 years or old were eligible to vote. The Convention was to select
officers and conduct the meeting according to rules prescribed by the
Committee at the Convention.
On 13 June 1939, Ben Dwight, Organizational Field Agent for the
Indian Service sent a "Memorandum to Mr. Monahan Re: Keetoowah
Organization"(A. C. Monahan was Regional Coordinator for Organization),
summarizing the Division's activities (Fort Worth NARA). This report is
among the most significant documents regarding the motives, factors, and
key personnel involved in the UKB reorganization:
Several weeks ago, Mr. Levi Gritts came to you stating that a
number of his Indian associates of the Keetoowah Society
Incorporated wished to organize under the Oklahoma Indian Welfare
Act so that they might obtain some of the benefits available under
that legislation. You requested that I survey the situation with a
view to assisting the Keetoowahs in some way regarding
organization, provided that organization was feasible and possible
under the Act. Both Mr. Exendine and I then interviewed members of
the various Keetoowah factions and found that there was
considerable sentiment among members of the different factions to
get together and work in a concerted way for the benefit of the
higher degree blood Cherokee Indians who constitute a portion of
the original Keetoowah organization. As a consequence of this
preliminary survey and at the request of a number of the members of
the different factions, Mr. Landman issued a notice of a meting at
which representatives of the different factions would meet for the
purpose of hearing a general explanation of the provisions of the
Oklahoma Indian Welfare Act. As you remember, both you and Mr.
Landman were present at that meeting and made general talks to the
assembly, explaining that it was not altogether certain the
Keetoowahs could as yet be considered a 'recognized band' within
the meaning of the Act. However, it was further stated that it was
desirable upon the part of all parties interested to assist in
every way possible such group or groups of people to avail
themselves of the benefits provided for in the Oklahoma Act as well
as other sources.
On the second day of this first general meeting [22 March
1939], I went over in detail all of the provisions of the Act. The
delegates were desirous of attempting to form an organization
composed of Cherokee Indians of one-half or more degree Cherokee
Indian blood who, in their judgment, constitute the Cherokee
Keetoowahs. As you had previously done, I cautioned the delegates
not to move too fast and, as a result of this meeting, the
delegates passed a resolution requesting that Mr. Exendine and I
continue and explanation of the provisions of the Act in the
various fullblood communities of the Cherokee and that a second
meeting of delegates from the different communities be held at the
Lyons Community House for the purpose of resurveying the situation
and sentiment among the Indians concerned. Accordingly, Mr.
Exendine and I complied with their request.
The Organization Agents explained that while the U. S. might not
recognized even the united group without congressional action, there was
a chance now, due to the BIA's recent understanding that there was an
existing Federal Charter. The assembly hired Ben Dwight as their Special
Legal Counsel.
At the second general meeting, on 9 June 1939, the assembly
concluded that a provisions organization should be set up through which
it would be possible to crystalize the opinion of the Indians concerned
regarding future activity. On 9 June 1939, the Constitutional
Committee's provisional constitution was adopted at a membership meeting
called in accord with the authorizing resolution, and the terms of the
provisions of the constitution itself. Under a provision of this
Constitution, the assembly appointed a provisional council of 27, and
set a meeting for 23 June 1939 to organize the Council and appoint a
Chief and other executive officers, to hold office until the first
Monday in August, on which day an election was to be held under the
provisions of the constitution for the members of the Council and the
Officers. A. C. Monahan believed that the Keetoowahs could use the
existing Keetoowah Charter as a model, in principle, of reorganization
as a Band(Memorandum, 13 June 1939, Ben Dwight, Organizational Field
Agent for the Indian Service to Regional Coordinator Monahan Re:
Keetoowah Organization, at Fort Worth NARA; see also Memorandum, 2
August 1939, A. C. Monahan, Regional Coordinator, Organization, Five
Civilized Tribes, to Daiker, Assistant to Indian Commissioner, *: IV)
That election was not held, but the appointed Council had the authority
to remain in office until they did have a regular or special election to
fill unexpired terms, between 1939 and 1941.
Dwight's conclusions clearly establish that the UKB organization
effort was a product of the various factions of the Keetoowah Indians,
not a general Cherokee organization like the Cherokees by Blood groups,
none of which constituted a polity. The Keetoowah Band decidedly was not
a revitalization movement including all the former Cherokee Nation. The
Principal Chief of Cherokee Nation was not a participant in the
proceedings, nor was any agent or former agent of Cherokee Nation or
Tribe, itself. Dwight wrote:
Unquestionably, the organizational movement has been constantly
gaining ground in all the various factions although not all of the
leaders have consented to participate in the movement. However, it
appears that the rank and file of the various Keetoowah factional
memberships are in favor of a united Keetoowah organization. I am
advised by those upon whom I can rely that a membership of probably
five or six thousand high degree Cherokee Keetoowah Indians will
signify their intention to be members of the proposed United
Keetoowah organization.
I should advise you that caution has constantly been taken to
make it clear that the Washington Office does not see fit as yet to
consider the Keetoowahs or any faction thereof as a 'recognized
band'. The Indians, leading in the movement, however, are anxious
to re-establish their united Keetoowah organization for general
purposes as well as in the hopes that the organization can and will
be recognized under the provisions of the Act. Frankly, if and when
the provisional organization develops into a reunited Keetoowah
organization wherein a majority of the higher degree blood Cherokee
Indians participate as members, I believe that it would be highly
advisable to recognize the organization as a band and permit them
to organize and incorporate under the Act. Without discussing the
legal angle of this situation at this time, I am of the opinion
that the history of the Keetoowahs will warrant recognition under
the Act. Even though there may have been no acts of Congress or of
the Bureau in recent years which recognizes this group of people as
a band, it seems to me that some such act could be done at this
time in order to meet that requirement, especially if the group
resolves itself into one which would simplify and expedite the
administration of services to Indians for whom it appears that the
United States government recognizes a distinct and definite
responsibility. If, in the opinion of the Legal Division of the
Washington Office, it is held that such an organization does not
constitute a 'recognized band' and yet the Washington Office is of
the opinion that the organization constitutes a highly desirable
one, I would recommend that appropriate legislation be initiated in
the Congress which will place this group upon a 'recognized band'
status.
These observations on my part are predicated upon favorable
developments which I anticipate will take place within the next few
weeks regarding the re-establishment, reuniting and building up of
the Keetoowahs into a virile, organized set-up.(Memorandum, 13 June
1939, Ben Dwight, Organizational Field Agent for the Indian Service
to Regional Coordinator A. C. Monahan Re: Keetoowah Organization,
at Fort Worth NARA)
The BIA Organization staff continued to work with the Band as they
adopted a proposed constitution and roll between 1939 and 1942. The Band
undertook this organization effort under the administration of
Chief/Reverend John Hitcher (1939-1946) and completed it under that of
his successor, Rev. Jim Pickup (1946-1954, 1956-1957, 1960-1967).
The Keetoowahs wanted to exclude freedmen and intermarried whites.
Collier asked the Solicitor for an opinion, who responded that the
Cherokee Tribe continued to own any remaining land or tribal assests,
and that those assets would be excluded from any new organization;
therefore, the intermarried whites and freedmen would lose no rights in
their exclusion.[MEMORANDUM TO INDIAN ORGANIZATION, n. d. 1939, from
Interior Solicitor to Assistant Commissioner Daiker, Indian
Organization; see 12: IV]
The UKB adopted the first UKB Constitution at a Convention at Lyons
Community House, eight miles south of Stillwell, Oklahoma, on 9 June
1939.(*: IV) The members of the UKB Constitutional Committee were Daniel
Hummingbird, John Muskrat, John Flute, Wilson Hummingbird and Ben Bird
Chopper. Under the name United Kee-too-wah Cherokee Band of Indians in
Oklahoma, a name they later amended, the Tribe convened annual elections
of officers under that provisional Constitution and By-laws during the
1940s, and used that Constitution as the source of the current
Constitution and By-laws.(*: IV) Apparently, the Department of the
Interior did not recognize this Constitution and Charter as "approved"
for the purposes of fulfilling the requirement of the "Rules and
Regulations for the Organization of the Indian Tribes of Oklahoma under
section 3 of the Oklahoma Welfare Act (Pub. No. 816-74th Congress) As
Approved by the Secretary of the Interior," current in 1939. The BIA
could not approve any UKB organic documents until after the 1946 Act.
Under the OIWA Rules, the Secretary provided that:
The Department will cooperate with and offer its advice and
assistance to any authorized tribal council or representative
committee of a tribe of Indians residing in Oklahoma in the
drafting of a constitution, by-laws and charter. Said constitution,
by-laws, and charter may be drafted simultaneously, in order that
the respective provisions thereof may be harmoniously adjusted to
one another, and the organization of the tribe be treated as one
process. This procedure may be followed in view of the fact that
under the Oklahoma Welfare Act most of the powers which the tribe
may exercise are to be set forth in the charter, rather than in the
constitution and by-laws, as is the case under the Indian
Reorganization Act. The constitution, including the by-laws, and
the charter, however, will be voted on in two separate elections.
No tribe may receive a charter of incorporation until it is
organized under an approved constitution and by-laws.[Emphasis
added]
The United Kee-too-wah Cherokee Band Council directed the General
Election Board to issue orders for a special election of general
officers and district council members, to be held on 5 August 1940. The
officers and council members elected at that time were to serve until
the 1941 regular election, or until successors were elected and
installed. The Council directed the election of the four executive
officers, Chief, Assistant Chief, Secretary and Treasurer, and
designated voting places and the number of council members representing
the respective districts. Goingsnake and Tahlequah were to have five
representatives each, while others had one to four representatives each.
The smallest District, Canadian, had only one representative, and
remains the district with the smallest resident UKB population today,
largely due to the effects of the Civil War and the building of
dams.(Rules for United Kee-too-wah Cherokee Band Special Election on
August 5, 1940, at Fort Worth NARA; Rev. Jim Pickup delivered this order
to Mrs. Hicks of the Muskogee Agency) On 25 October 1940, the UKB
Council passed a Resolution "Relating to the proposed construction of a
general headquarters for the restricted Cherokee Indians," to be
"centrally located, for use in connection with strictly Indian matters
and those in connection with the various services of the United States
Indian Bureau."(See also, Letter, 25 October 1940, Chief John Hitcher to
Superintendent A. M. Landman, Five Civilized Tribes Agency, Muskogee, at
Fort Worth NARA)
The UKB requested the assistance of the U. S. Indian Services "to
secure the funds with which to purchase the necessary land and construct
thereon buildings necessary for a general headquarters to be used for
and on behalf of the restricted Cherokee Indians in the Cherokee
Nation." The plan was intended to benefit some 8,000 to 10,000
Cherokees, by establishing a place for meetings and activities, to house
Indian service and general Indian organization meetings, and to
establish offices for the Indian Service. The facilities were supposed
to house arts and crafts, sewing, home demonstration, cooperative
activities, general education and welfare, and the like. The estimated
cost of constructing a native stone building 40' by 80' with a 14 foot
ceiling, 16 inch walls, shingled gabled roof, and folding door partition
was about $10,000. The Council delegated authority to the Chief to
negotiate the purchase of lands and construction, and set out three
choices of locations: the 80 acre restricted property of Jim Chair in
Cedar Tree, Cherokee County, 9 miles east of Tahlequah on HWY 51,
offered for $1,500; the 55 acre Edward Ewen property at Biddings
Springs, Adair County, about 10 miles west of Stillwell and 15 miles
east of Tahlequah between new and old HWY 51, already improved with
seven room house, a barn and water mill, owned by a non-Indian ready to
sell for $4,500; and the 40 acres of a non-Indian, W. L. Davis at Moody
Springs, 10 miles north of Tahlequah in Cherokee County, worth $2,000,
equipped with a house and barn. Significantly, these were not
strongholds of the "Nighthawks" or of any other particular faction.
Chief (Rev.) John Hitcher, Assistant Chief Sam O'Field, Secretary Nelson
Toolate and Treasurer Richard Fourkiller signed the resolution.
Councilmen, with their respective districts indicated, were: Richard
Henson (Cooweeskoowee); John Cochran (Cooweeskoowee); Ned Dreadfulwater
(Tahlequah); George Flute (Sequoyah); Ellis Sanders (Flint); Eli Wilson
(Tahlequah); Jackson Livers (Flint); Taylor Glass (Flint); Gus
Hummingbird (Goingsnake); Nick Davis (Delaware); Jack Wolfe (Flint);
James L. Chair (Tahlequah); Jim Davis; Ben Birdchopper (Saline); Looney
Bark; William Foder (Tahlequah); Ned Crawford (Illinois); Adam Bean
(Goingsnake); Charlie Fourkiller (Goingsnake); George Hummingbird
(Goingsnake); Levi Hogner (Goingsnake); and Joe O'Field (Delaware).
Chief John Hitcher offered a brief history of the UKB as of 1940 in
the memorandum accompany the UKB building proposal:
Approximately two years ago, at the instance of some restricted
Cherokee Indians, representatives of the United States Indian
Office made a general survey of organization possibilities among
this group of Indians. At that time, it was not clear that an
organization could be consummated under the provisions of the
Oklahoma Indian Welfare Act nor was there any assurance that
restricted Indians themselves desired such an organization.
However, as discussion meetings were held, interests along these
lines developed for further consideration of this matter. As a
result of a general mass meeting, called by Superintendent Landman
and attended by Regional Coordinator Monahan, a constitutional
committee was appointed to draw up a provisional constitution and
effect a provisional organization. Accordingly, such a provisional
organization was set up and continuous consideration has been given
to the interest and welfare of the restricted Indians and the
possibilities of advancement through organization. Under provisions
of the constitution that was ratified by the restricted Indians
(all of them having an opportunity to participate in this move)
general officers and 27 councilmen representing all local units of
the nine Cherokee districts covering the entire Cherokee Nation
were duly elected at a special election on August 5, 1940 of The
United Keetoowah Cherokee Band of Indians in Oklahoma. No attempt
has been made to overwhelm the traditions, customs, ceremonies,
etc., of the so-called Keetoowah factions that have developed in
some degree in recent years, but a successful attempt has been made
to bring into the present organization members of those various
factions for the purpose of marshalling the efforts of the
restricted Indians into a business organization which could
function for Cherokee of the one-half to fullblood. Under the
provisions of the constitution, any Cherokee Indian of one-half or
more degree Cherokees blood is eligible for membership and can
participate in the activities of the organization. It can well be
stated that a great majority of these restricted Cherokee Indians
are desirous of taking part in this movement and that actually
about 4,000 have made formal written application for membership. We
understand that this organization is not an incorporated band under
the provisions of the Oklahoma Indian Welfare Act, but we are of
the opinion that we do have the right to make such recommendations
to the Federal Government and we desire to make on behalf of the
restricted Cherokee Indians.
Organization Field Agent Ben Dwight forwarded this letter with his own
cover letter to Superintendent A. M. Landman, adding his own
recommendation of support, noting that many Keetoowahs had been using
their own funds to fund the organization effort. Dwight observed:
There are twenty fully organized communities, subsidiary units of
the band organization, scattered over practically all of the
fullblood Indian communities in the nine Cherokee Nation districts.
I should like to add that this organizational setup of
restricted Cherokee Indians provides a medium through which the
Indian Service may administer more effectively and comprehensively
to that group of Indians and also carry on necessary and worthwhile
educational programs much more advantageously than it could without
such an organization extending into all the communities wherein
there live restricted Indians. It should also be observed that the
settling up of this democratic organization does not preclude in
any way cooperation with or administration to any group of
restricted Indians that does not care to affiliate with this band.
However, it may be observed that most of the members of the non-
affiliated groups have signified their wish to participate in the
United Keetoowah Cherokee Band organization.
On 27 November 1940, Superintendent Dwight responded that no funds were
available for the proposed general headquarter (at Fort Worth NARA).
Organization Field Agent Dwight wrote to the Commissioner through
Regional Coordinator A. C. Monahan on 11 December 1940, regarding the
UKB's request for a community house, hoping that money could be made
available for the UKB construction request (at Fort Worth NARA).
Reiterating his earlier comments on the building project to Agent
Dwight, Superintendent Landman regretfully declined to support the
project, citing the $300,000 already committed to construction and
development of land already involved in rehabilitation, and adding, "It
has been our plan to remodel the old Fletcher place as a community
center," as a meeting place, near the old Lyons Community House, near
Stilwell.(Letter, 20 December 1940, Superintendent A. M. Landman, Five
Civilized Tribes Agency, Muskogee, to Regional Coordinator A. C.
Monahan, in Fort Worth NARA) Rev. John Hitcher died only a few months
into his administration.
With the Organization Staff's help, the UKB began to seek enabling
legislation from Congress permitting the UKB to have a referendum on a
Constitution and By-Laws under Sections 16 and 19 of the IRA, and a
charter under Section 3 of the OIWA charter (at Fort Worth NARA). Dwight
continued in his efforts to obtain aid for the UKB (Letter Dwight to
Commissioner, 28 March 1941, Fort Worth NARA).
On 20 February 1942, the UKB Council adopted a resolution in a
meeting at Cedar Tree Church in Cherokee County. The Council stated that
they intended in their Constitution and By-laws to organize Cherokee
Indians of one-half or more Indian blood under the terms of Section 3 of
the OIWA. They then would allow "Cherokee Indians of lesser degree of
Indian blood to join for the purposes of securing benefits and
assistance from various agencies, and for the further purpose of
expediting the administration of services to the members of this band."
If the U. S. declined to acknowledge the Band outright, they would seek
relief from Congress.
On 20 February 1942, the UKB Council authorized the appointment of
a committee of three, including the Chief, to revise the 1939
constitution, transmit it to the Secretary, and ask him to convene a
referendum as soon as possible. They further agreed to hold the roll
open. So, while initial membership consisted mostly of Dawes enrollees
(reflecting affiliation of these members with the Keetoowahs who
acquiesced to the acts of the Dawes Commission), the UKB finally
enrolled persons of Cherokee blood regardless of Dawes descent. [See
Keetoowah Constitution, Article IV, and Resolution 2: 19 April 1949] In
the meantime, the Keetoowah Society, Inc., resumed its efforts to obtain
separate reorganization from the other Keetoowah groups, or the UKB, and
wrote to Commissioner Zimmerman of their intent to contact Congressman
Stigler and Senator Elmer Thomas for that purpose [Letter, 26 July
1944, Gabriel Tarepen to Commissioner of Indian Affairs William
Zimmerman, Jr., in Central Classified Files of the BIA, Department of
Interior. Box 463. Accessions 56A-588. Records for 1948-1952. Five
Tribes. 010. Legislation (011.-015). File # 29941-44] The Oklahoma
congressional delegation responded to the requests of the United
Keetoowah Band, but not the separatist requests of the Keetoowah
Society, Inc., or of any other group.
In 1942, the question first arose regarding the possible role of
Cherokee Nation and its Principal Chief in the UKB reorganization. It
appears that on 14 February 1942, Principal Chief Jesse B. Milam of
Cherokee Nation wrote to the Commissioner regarding Keetoowah
reorganization. On 12 March 1942 Commissioner William Zimmerman, Jr.
wrote to Principal Chief of Cherokee Nation Jesse B. Milam:
It is quite true, as you state in your letter of February 14,
that this Office is interested in organizing the Keetoowah groups
of the Cherokee Nation. We have understood that the various
factions into which the original Keetoowah Society had been divided
in recent years have shown a definite inclination towards unifying
and reorganizing as a single corporate body. It has been our
feeling that the Oklahoma Indian Welfare Act, like the Indian
Reorganization Act, was conceived of as a means of assisting
Indians such as these -- that is, Indians of a relatively high
degree of Indian blood, who have little if any resources, who have
no access to the usual sources of credit, and who give every
indication of being able to profit from community organization. The
difficulty has been that under the Oklahoma Act, the Keetoowah
group or groups cannot be recognized as a legal tribe. They
represent only a fraction of a tribe.
It has been suggested that legislation be secured which would
declare that for purposes of organizing under the Oklahoma Act, the
Keetoowah Society shall be recognized as a tribe. No other formula
seems possible at the present time. The actual wording of such
legislation, we feel, should be worked out by the Keetoowahs or
their counsel. I would be interested in having an expression of
your views in this matter.(Fort Worth NARA)
Notice here that while the Commissioner does mention in passing the
possibility of making credit available to Keetoowah members as one
advantage of reorganization, he does not suggest that it is the only
reason. The general sovereignty and self-determination interests in
unifying the community are obviously of greater interest here to the
Tribe and to the Department. Further, it seem clear here that the means
to develop a revolving loan arrangement under Section 4 of OIWA already
existed for Keetoowahs, and alone would have provided no adequate need
or justification for legislative acknowledgment. Zimmerman referred to
this letter in replying to a letter from a Cherokee, Adam Bean of
Stilwell, who had written to Zimmerman about UKB reorganization (Letter,
Commissioner Zimmerman to Adam Bean, 5 October 1942, in Fort Worth
NARA):
The Solicitor of the Department of the Interior has held that the
Keetoowah group or groups could not be recognized as a band since
they actually represent only a fraction of the Cherokee Tribe. We
have written to your Principal Chief, J. B. Milam, suggesting the
possibility of securing legislation which would recognize the
Keetoowah group as a band, thereby making them eligible for
organization under the Oklahoma Indian Welfare Act.(Fort Worth
NARA)
Finally, the UKB agreed to seek enabling legislation to allow their
reorganization in the event the Secretary declined their request for a
referendum under OIWA and IRA. On 2 October 1942, the UKB Council
transmitted the Resolution of the United Keetoowah Cherokee Band of
Indians in Oklahoma dated 20 February 1942, with the revised
Constitution, to Superintendent Landman, for forwarding to the
Commissioner and Secretary, with the request for support in the
acknowledgment and reorganization effort. At that date, the enrolled
membership was 3,687.
In 1942, BIA Organization Field Agent A. A. Exendine strongly
recommended that the Commissioner allow the United Keetoowah Band in
Oklahoma to form a Charter under Section 3 of the Oklahoma Indian
Welfare Act, so that the Band would be "considered as a recognized Band
under the Oklahoma Indian Welfare Act and a referendum be authorized by
the Secretary of the Interior on their proposed Constitution; and, if
that cannot be done, that appropriate legislation be initiated whereby
such recognition may be affected based on the following:"
the attitude upon the part of these Indians; their determination to
put themselves in a position to assume responsibility for their own
welfare; the necessity of doing all that can be done for a group of
Indians who are in need of all possible assistance that can be
afforded them in the advancement of a comprehensive socioeconomic
program; the efforts that have been made by both the Indians and
personnel of the United States Indian Service; and for reasons of
administrative proficiency.(Letter, 26 October 1942; *: IV)
Exendine forwarded to Acting Commissioner Zimmerman, care of the Area
Director, a set of draft Constitutions and By-laws of the "United
Keetoowah Cherokee Band of Indians in Oklahoma," with a resolution of
the Band requesting recognition under OIWA or the enactment of
appropriate legislation requesting such recognition, with a letter of
transmittal through the agency (through Supt. Landman and the
Organization Division) to the Commissioner. The Band had operated under
the Constitution for three and one-half years. One revision that the
Indian Affairs Office wanted to make in the Tribe's constitution was the
substitution of the word "Cherokee" for "Keetoowah" in the Band's name,
to read, "The United Cherokee Band of Indians in Oklahoma." Exendine
reported that the intent of this change was:
to circumvent probably misunderstandings that might arise hereafter
as regards the various ceremonies of the different factions of the
"Keetoowahs."
Although the name-change has been made as indicated above, the
Band has no intention of changing their idea of continuing
organizational activities in which members of each of the factions
of the "Keetoowahs" will be eligible for membership in the United
Cherokee Band of Indians in Oklahoma. And, the primary basis
underlying this organizational activity is to set up an
organization for and on behalf of Cherokee Indians of one-half or
more degree Cherokee Indian blood with provisions that will make it
possible for Cherokee Indians of a lessor degree of Indian blood to
become members--that is, to include the restricted Cherokees or
such others that from time to time may be considered as Indians for
whom the Federal Government recognizes a service or property-
protective responsibility.
The purpose was to achieve acknowledgment for an entity inclusive of all
its factions:
the Band has no intention of changing their idea of continuing
organizational activities in which members of each of the factions
of the Keetoowahs will be eligible for membership in the United
Cherokee Band of Indians in Oklahoma. And, the primary basis
underlying this organizational activity is to set up an
organization for and on behalf of Cherokee Indians of one-half or
more degree Cherokee Indian blood with provisions that will make it
possible for Cherokee Indians of lesser degree of Indian blood to
become members--that is, to include the restricted Cherokees or
such others that from time to time may be considered as Indians for
whom the Federal Government recognizes a service or property-
protective responsibility.[Emphasis added; *: IV. The Cherokee
Nation of Oklahoma Constitution, at "Article III -- Membership,"
today limits registration to Dawes enrollees or their descendants,
including non-Cherokees and non-Indians of any or no Indian blood
degree, but exclusive of freedmen and their descendants]
As it was, on 16 January 1943, Organization Field Agent Ben Dwight, now
acting as Special Attorney for the Keetoowahs in this matter (Dwight
became the UKB's legal adviser on 29 June 1940), found it necessary to
write to Superintendent Landman at Muskogee, requesting that Landman
forward the UKB's proposed organic documents and other materials
relating to their request for acknowledgment for organizational purposes
to the Chicago Office of the Indian Service without delay, so that
Dwight could compose a support brief. Agent A. A. Exendine sent a
similar letter on 18 February 1943 stating the same request (See Fort
Worth NARA) On 22 February 1943, Landman complied, sending the materials
with a cover letter to Commissioner Zimmerman in Chicago.(Fort Worth
NARA)
The Department of Interior's internal debate over the Keetoowah
raged on for several years. Finally, in April 1944, Assistant
Commissioner D'Arcy McNickle, Tribal Relations Branch, harpooned the
Kirgis Opinion and scuttled it once and for all. His comments justifying
Acting Secretary Abe Fortas's request for a congressional override of
the Solicitor's Opinion are worth recalling in their entirety,
particularly because so many latter-day authorities have neglected them
so shabbily. McNickle determined that:
In 1937 the Solicitor's Office ruled that the Keetoowah
Society of Cherokee Indians was not a band for the purpose of
organizing under the Oklahoma Indian Welfare Act. The opinion
characterized the organization as "a secret society representing
the most conservative portion of the Cherokee Indians", and having
for its objective in the beginning, opposition to slavery, and
subsequently opposition to allotment. The Solicitor's decision was
based largely on information obtained from a report compiled by
Charles Wisdom, an anthropologist attached to the Indian Office.
Mr. Wisdom in examining into Cherokee history made these
conclusions: (1) That while the name Keetoowah was derived from an
ancient town, there is no historical connection between the society
and that original political group; (2) That there exists only a
cultural and mystical relationship between the two.
Using the foregoing information the Solicitor, in rejecting
the Keetoowah Society's request for recognition as a band, held
that a band is a political body, having the functions and powers of
government. Likewise, it must possess a common leadership,
concerted action and a well-defined membership; moreover, the
membership is perpetuated primarily by birth, marriage and
adoption. The opinion drew a distinction between the Keetoowah
Society and the Creek towns, holding that the latter were
independent units capable of political action and particularly the
initiation of hostile proceedings; not only were they the
functioning political subdivisions of the Creek Confederacy or
Nation, but they were the original independent units of government
of the Creek Nation. The Solicitor went on to say that "neither
historically or actually" was the Keetoowah group a governing unit
of the Cherokee Nation but rather it was a society of citizens
within the Nation with common beliefs and aspirations.
This argument of the Solicitor's Office accepts as fact a
fiction which, for its own reasons, the United States Government
has insisted on treating as a fact for more than a hundred years.
There was not aboriginally a Cherokee Nation. There were among the
Cherokee people a number of towns and there was an elaborate
interrelationship between these towns, as there was also
intertribal relationships as between the Cherokees and the various
tribes in the Tennessee valley and along the Eastern Seaboard. The
Cherokee people were located in four general areas, referred to as
the Lower Settlements, the Valley Settlements, the Middle
Settlements and the Overhill Settlements. In a recent study of the
Cherokee s published in Bulletin 133 of the Smithsonian Institution
by Dr. William Harlen Gilbert, Jr. (1943), the following passage is
found:
The central area of the Cherokees, comprising the Kituhwa
(Middle) and the Valley Settlements, was the heart of the
tribe.
Later, during the Revolutionary course [and] after the removal in
1838 only fragments of the people remained. Quoting again from
Gilbert:
By far the largest and most important of the remnantal
Cherokee groups after the removal were those clustering around
the juncture of The Ocona and Tuckaseegee Rivers near the old
settlement of Kituhwa in the heart of the old Middle
Settlements.
Moreover, the term "Kituhwa" (Keetoowah) is used to designate
one of the two dialects still spoken in the Eastern Cherokee area.
The foregoing information lends considerable color to the
contention of Mr. Boudinot, namely, that the term "Cherokee" never
should have been taken as a tribal name; that in actuality
"Cherokee" is derived from "Tsalagi" which may or may not have been
used by the Cherokees themselves -- Boudinot claims that it was a
place name of minor importance, not properly a tribal designation.
Mooney's article in the American Handbook observes that the people
also called themselves "Ani-Kituhwagi" meaning "People of Kituhwa",
which he describes as "one of their most important ancient
settlements". Mooney also points out that the Delawares and other
tribes called them "Kittuwa".
At the very least, then, the term "Keetoowah" was originally
the name of a Cherokee town, perhaps the most important of the
ancient towns; and in its broadest implication it may be that the
term is a more appropriate cognomen for the entire people. Taking
it at its least implication, Keetoowah is, historically at least,
on a par with the Creek towns in that it was originally an
independent unit of government. Hence the Solicitor is wrong in
saying that Keetoowah was not historically a governing unit.
Next it remains to explore whether the original significance
of Keetoowah, as being somehow associated with the heart and the
center of the Cherokee people, went with the people when they were
expelled from the original homeland. The Solicitor assumes that the
contrary was true: that the term was only resurrected in the
stressful days before the Civil War when the Cherokee people found
themselves split on the slavery issue, and that it was again
invoked when the fact of tribal dissolution approached. As I point
out above, the Solicitor characterizes it as a secret society. The
question deserves more research than it has had up to now. Emmett
Starr in the "History of the Cherokee Indians" (quoted by Wisdom),
presents facts which indicate that Keetoowah was a living thing and
that it went with the people. Writing about Red Bird Smith, who was
the moving spirit in the founding of the Night Hawk Branch of the
Keetoowah organization, Starr points out that Red Bird was born
near Fort Smith, Arkansas, in 1859, while his parents were enroute
to Indian Territory, and that his father, Pig Red Bird (the name
Smith was added by white people), was an ardent adherent of the
ancient rituals and customs, which he taught to his son. Red Bird
then went on to become one of the Chief expounders of the religious
beliefs and moral codes of the old life. When the Keetoowahs
drafted their constitution in 1858, they did so not as a private
and exclusive society, one feels, but as a group of trustees might
organize in order to keep intact the property and the spiritual
estate of the people facing peril. Previously, there had been no
occasion for such formal organization because Cherokee laws and
customs had continued to function. By 1858 many non-citizens had
come into the Nation, factionalism became strong, and it was
necessary to adopt measures in self-protection. The Keetoowahs even
adopted a flag in the heat of the Civil War, around which they
rallied support for the cause of the North. In February 1863 they
abolished slavery unconditionally and forever (Mooney). In all of
this that acts as a nation, certainly, not as a private, voluntary
association.
The record, incomplete as it is, seems clearly to indicate
that the Keetoowah group, whether we call it a society, a faction,
or a band, did exercise independent political action, even to the
point of initiating hostile proceedings. It has been a formally
organized body at least since 1858, with representative districts,
and for many years it had a common leadership. The fact that the
original body split into factions ought not to persuade our
judgment as to the true nature of Keetoowah. At present there is in
evidence a real desire on the part of all factions to reunite in a
common organization.
In considering the status of the Keetoowah association, one
ought not to lose sight of the total history affecting the Cherokee
Indians. As I pointed out earlier, the United States government
insisted on treating with the Cherokee Nation when there was no
such entity, and more than there ever was a Creek Nation. The
pressures exerted by the United States Government resulted in
producing numerous counterpressures within the Cherokee society.
Those elements within the tribe who were compliant and willing to
concede the demands made by the Untied States in time were
recognized as comprising the corpus of the tribe; those who
resisted were treated as a malcontent minority. At a most critical
juncture in Cherokee history, on January 31, 1899, a general
election was held for the purpose of accepting the Dawes Commission
terms. The Keetoowahs, that is to say, the Indian element off the
Cherokee Tribe, refused to participate and as a result their
interests were defeated by 2015 votes. The membership of the group
was more than sufficient to carry the election if they had mustered
their full strength. From this indication we gather that at that
time the Keetoowahs actually represented a majority within the
tribe.
The Keetoowahs themselves have never accepted the view that
they are not "the people' and that they do not speak for the real
interests of the ancient Cherokee world. They continue to this day
to speak and act in all patience as if the decrees of the courts
and the acts of the Congress had never been. But they are still
puzzled at the failure of the United States to understand the
simple thing they have always said, namely that Keetoowah is
Cherokee and should never have been considered anything else.
I propose that we bring this matter again to the attention of
the Solicitor and try to get a revision of the 1937 opinion.
(Position Paper on the UKB, 24 April 1944, D'Arcy McNickle)
In light of this memo, it is clear that the 1946 Act that followed was
not a Federal acknowledgment bill at all. As history shows, the
Secretary simply abandoned the Solicitor's Opinion and promoted status
clarification legislation. On 5 June 1944, McNickle met with Chief
Counsel of the Indian Service, Theodore Haas, to consider revision of
the 1937 Kirgis Opinion. The recommended the drafting a bill for
congressional approval, recognizing the Keetoowahs under the OIWA, under
the terms of section 3.(Letter, 6 June 1944, Chief Counsel Theodore H.
Haas to Commissioner Zimmerman, *: IV)
Gritts and Boudinot started a campaign to allow the Keetoowah
Society, Inc., to organize under the OIWA.(Letters, Levi Gritts and
Frank Boudinot to Congressman Stigler; and Letters, Congressman Stigler
to Levi Gritts and Frank Boundinot, 6 September 1944 to 6 March 1946;
Record Group 46, NARA) However, by this time, the move toward
legislation was already underway, and the UKB already had a council
inclusive of all Keetoowahs, even those who had differences with the old
corporation. The movement, now truly representative and inclusive, was
out of the hands of the old guard.(House Report 447, 79th Cong., 1st
Sess., 25 April 1945) However, ironically, it was the efforts of Gritts
and Boudinot in Washington that got the legislation through. Gritts
ignored the new Superintendent, W. O. Roberts, at the Muskogee Agency,
meeting with and writing to the Commissioner and Oklahoma delegation and
their agents. Roberts never got over this snubbing.
After Chief John Hitcher died in 1946, the BIA abandoned the plan
to persuade the Tribe to change its name. The BIA still hoped that all
Cherokee Nation descendants would be eligible to enroll in the UKB. A
name change along the lines that Superintendent Landman preferred would
have allowed the uninformed to assume the Tribe was only a part of
Cherokee Nation. Eventually, the Band settled on the name, "United
Keetoowah Band of Cherokee Indians in Oklahoma," to indicate that the
Band included the various Keetoowah factions and splinter groups. The
Band did not include all Cherokee descendants, and that the Band resided
in Oklahoma. Certain factions and individuals, including staff at the
local agency, supported a drastic change in political direction and
membership in the UKB that this deceptively harmless name change would
represent. Already, certain parties hoped to use the Band as a vehicle
for restoration of the Cherokee Nation. The result would have been the
subordination of the Band to the Cherokee Nation. However, the Tribe was
fully aware of the implications of this deceptively harmless ruse, and
quickly quashed it.
Strangely enough, only a few years later, Five Tribes Agency
Superintendent W. O. Roberts presented a report to Commissioner of
Indian Affairs Zimmerman in which Roberts claimed to have reviewed all
the UKB files only to conclude that he could not support the
reorganization effort, and yet it seems he overlooked all the memos from
Organizational Field Head Exendine, or else perhaps former Area Director
really had sent everything in the office on the matter to the Chicago
office in February, 1943. If Roberts ever saw the McNickle
determination, or the 1946 Act and its other legislative history, he
certainly concealed that knowledge.(See *: IV; W. O. Roberts to W.
Zimmerman, 21 July 1947, File # 27285-1947) D'Arcy McNickle and
Zimmermen knew that Roberts was dissembling, and McNickle's personal
irritation at Roberts's insubordination is clear (in light of McNickle's
personal knowledge of and interest in the UKB). Every aspersion Roberts
cast on the Keetoowahs went right into McNickle's ear, and McNickle rode
Roberts on the matter whenever he could.
Superintendent Roberts appears to have opposed the UKB
reorganization. He probably never became reconciled with his obligations
regarding OIWA/IRA reorganization. He found that "Some effort on the
part of personnel at the Five Tribes to reconcile the differences of
groups resulted in the modification of the proposed contract which
changed the terms of it all to the United Cherokee Band." Under that
name, the Band would have become simply a vehicle for resurrecting the
old Cherokee Nation, nothing more. According to the Superintendent's
informants, "this proposal entirely missed the point"(Letter, January 4,
1948, Superintendent W. O. Roberts to Acting Commissioner of Indian
Affairs, William Zimmerman, Jr.; *: IV) The Band's historical existence
had preceded the Cherokee Nation's, and had survived the work of the
Dawes Commission and congressional legislation. The Band traced the
origins of its core population to the ancient Keetoowah town in North
Carolina. The Keetoowahs had resisted union with Cherokee Nation before
Removal, and had resisted union with the new Cherokee society through
1907. After statehood, the Keetoowahs had resisted assimilation into the
mainstream of multicultural Oklahoma/Arkansaw society, had fought for
the passage of IRA, and then for the OIWA, in the hope of regaining
Federal acknowledgment. The Keetoowahs had survived the 1937 Kirgis
Opinion's finding. They knew that the Keetoowah Society, Inc., standing
alone, was unqualified to reorganize under OIWA and IRA as a the
Keetoowah government. The Band did not intend to surrender to the
architects of a plan to subvert their intentions, now that the Band had
won congressional authorization to reorganize.
Acting Commissioner Zimmerman informed both Superintendent Roberts
and Secretary Warne of the Band's position. He found that the United
Keetoowah Band of Cherokee Indians in Oklahoma had a very old
governmental primary rule, a law by which all faithful Keetoowahs must
live, and from which any constitution had to arise. Zimmerman wrote that
the UKB citizens were, "persons claiming affiliation with the Keetoowah
idea or philosophy"[Letter, December 8, 1947, Acting Commissioner
Zimmerman to Secretary Warne; *: IV] Understandably, after their 1946
Act passed, the Keetoowahs had no desire to become an unwilling vehicle
for resurrecting Cherokee Nation. After four years' work with the
factions to assure unity, Exendine reported the UKB organization had
3,687 members, 40% of over age 21, representing nearly half of the
Cherokees of half-degree Indian blood or more living in Cherokee Nation.

THE ACT OF AUGUST 10, 1946

In 1946, the United Keetoowah Band succeeded in proving to the
Department and Congressman Stigler their right to organize as a distinct
entity. The 25 April 1946 Report from Congressman Jackson's Committee
reported favorably on the bill, recommending passage without amendment,
citing the explanation of the aims and purposes of the bill in the
Secretary's letter to the Chairman and the Committee of 24 March
1945.(House Report No. 447 to accompany H. R. 341, 79th Cong., 1st Sess.,
25 April 1945)
Acting Secretary of Interior Abe Fortas revisited the 1937 Kirgis
Opinion on the Keetoowah Society's right to reorganize under OIWA and IRA.
In his testimony on H. R. 79-341, Fortas recommended that Congress pass
this legislation, and that in doing so, that they set aside the earlier
negative recommendation of the Solicitor's office as inconclusive. Fortas
wrote:
The word "Keetoowah" is closely interwoven in the fabric of Cherokee
history. It was the name of the principal towns or seats of authority
before the removal to Indian Territory. It also is the name applied to
one of the two remaining dialects still spoken among the Eastern Band
of Cherokees in North Carolina. It seems to have been the name by
which a century ago, the Cherokees spoke of themselves.
Reviewing Keetoowah history, including persistent efforts at maintaining
governmental autonomy through periods of removal, war, and assimilation, he
stated:
. . . the Keetoowahs tried to prevent the allotment of the Cherokee
tribal lands. At the general election of January 31, 1899, to vote on
the Dawes Commission terms, they counselled their followers to abstain
from voting, and as a consequence the Dawes Commission was upheld by
a comparatively narrow margin. They employed attorneys to prosecute
the Eastern Cherokee cases in the proceedings of 1903-1906.
Fortas's most important finding dealt, of course, with the political
identity of the Keetoowah Band, because without that, he could not override
the Solicitor's Opinion's reasoning:
When legislation was pending in Congress in 1905 to dissolve the
tribal governments of the Five Civilized Tribes, the Keetoowahs
applied for and received a charter of incorporation through the United
States district court. The intention in this, as in all courses
followed by the Keetoowah group, was that of keeping alive Cherokee
institutions and the tribal entity.(Emphasis added)
Fortas did not dispute with the legal findings of Kirgis, given the facts
of which Kirgis was aware. Please recall, however, that Kirgis was ignorant
of the existence of the Keetoowahs' Federal Charter of Incorporation when
he penned his Keetoowah -- Organization as a Band Opinion. The Department
had neglected the existence of that Charter until Levi Gritts brought it to
the attention of Regional Coordinator for Organization A. C. Monahan in
July 1939. The Charter was a key item in the Keetoowahs' argument that they
could be identified as a previously-recognized polity, and Fortas knew it.
He also had in hand the D'Arcy McNickle determination of 24 April 1944,
recommending public repudiation and an override of the Kirgis Opinion.
McNickle had said:
The record, incomplete as it is, seems clearly to indicate that
the Keetoowah group, whether we call it a society, a faction, or a
band, did exercise independent political action, even to the point of
initiating hostile proceedings. It has been a formally organized body
at least since 1858, with representative districts, and for many years
it had a common leadership. The fact that the original body split into
factions ought not to persuade our judgment as to the true nature of
Keetoowah. At present there is in evidence a real desire on the part
of all factions to reunite in a common organization.
In considering the status of the Keetoowah association, one ought
not to lose sight of the total history affecting the Cherokee Indians.
As I pointed out earlier, the United States government insisted on
treating with the Cherokee Nation when there was no such entity, and
more than there ever was a Creek Nation. The pressures exerted by the
United States Government resulted in producing numerous
counterpressures within the Cherokee society. Those elements within
the tribe who were compliant and willing to concede the demands made
by the Untied States in time were recognized as comprising the corpus
of the tribe; those who resisted were treated as a malcontent
minority. At a most critical juncture in Cherokee history, on January
31, 1899, a general election was held for the purpose of accepting the
Dawes Commission terms. The Keetoowahs, that is to say, the Indian
element off the Cherokee Tribe, refused to participate and as a result
their interests were defeated by 2015 votes. The membership of the
group was more than sufficient to carry the election if they had
mustered their full strength. From this indication we gather that at
that time the Keetoowahs actually represented a majority within the
tribe.
The Keetoowahs themselves have never accepted the view that they
are not "the people' and that they do not speak for the real interests
of the ancient Cherokee world. They continue to this day to speak and
act in all patience as if the decrees of the courts and the acts of
the Congress had never been. But they are still puzzled at the failure
of the United States to understand the simple thing they have always
said, namely that Keetoowah is Cherokee and should never have been
considered anything else.(Position Paper on the UKB, 24 April 1944,
D'Arcy McNickle)
Fortas therefore recollected the Frederick Kirgis Opinion of 1937, which
ruled against Keetoowah organization, and essentially dismissed it as non-
controlling:
In 1937 the Keetoowah Indians [requested] permission to organize
under section 3 of the Oklahoma Indian Welfare Act because the society
was, in effect, a recognized band of Indians residing in Oklahoma. The
Department was compelled to decline this request because it seemed
impossible to make a positive finding that the Keetoowah Indians were
and are a tribe or band within the meaning of the Oklahoma Indian
Welfare Act. It remains true that the group is composed of individuals
predominantly Indian who are interested in maintaining their identity,
individually and as a group, as Cherokee Indians. The organization has
a recorded membership of 3,687 members, which represents nearly one-
half of the Cherokees possessing one-half or more degree of Indian
blood now residing in the territory known as the Cherokee Nation of
Oklahoma, which is in the northeastern part of the State. The courts
have regularly held that congressional recognition of a group of
Indians as a band is conclusive. Legislative recognition of the
Keetoowahs as a band would accordingly enable these Indians to secure
any benefits, which, under the Oklahoma Indian Welfare Act, are
available to other Indian bands or tribes.
Fortas strongly supported the legislation, concluding:
H. R. 341 has been introduced, I understand, in response to a
request of the leaders of the Keetoowah Indians. Its text seems to be
sufficient to permit these Indians to organize for their common
welfare and to adopt a constitution and bylaws. I urge that it be
enacted.
The Bureau of the Budget has advised me that there is no
objection to the submission of this report to your committee.
[See also Senate Report No. 978 to accompany H. R. 341, 79th Cong. 2nd
Sess., 21 February 1946; and House Conf. Report No. 2705 to accompany
H. R. 341, 79th Cong., 2nd Sess., 30 July 1946]
Congressional intentions in clarifying the sovereign and separate status of
the United Keetoowah Band are clear and unambiguous on the face of the P.
L. 715, 79th Cong., 2nd Sess, 10 August 1946:
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress Assembled, That the Keetoowah
Indians of the Cherokee Nation of Oklahoma shall be recognized as a
band of Indians residing in Oklahoma within the meaning of section 3
of the Act of June 26, 1936 (49 Stat. 1967).
The Department agreed by its actions with the congressional determinations
that in the P. L. 79-341, the Act of August 10, 1946 (60 Stat. 976, 25 U.
S. C. Sec. 303), Congress provided that, unlike the Seven Clan Society, the
Keetoowah Society, Inc., or the Night Hawks, the "Keetoowah Indians of the
Cherokee Nation of Oklahoma shall be recognized as a band of Indians within
the meaning of Section 3 of the Oklahoma Welfare Act:"
Section 3 of the Oklahoma Indian Welfare Act provides that "any
recognized tribe or band of Indians residing in Oklahoma shall have
the right to organize for its common welfare and to adopt a
constitution and by-laws, etc."
Section 16 of the Indian Reorganization Act provides that "any
Indian tribe, or tribes, residing on the same reservation, shall have
the right to organize for its common welfare, etc."
In both cases the intention seems clear that a tribe or band must
organize as a unit, and the Solicitor has consistently held so.
A slightly different situation exists with respect to the
Cherokee Indians since Congress, in the Act of August 10, 1946 (60
Stat. 976), provided that the Keetoowah Indians of the Cherokee Nation
of Oklahoma shall be recognized as a band of Indians within the
meaning of Section 3 of the Oklahoma Welfare Act. This provision
permits the Keetoowah Indians to organize apart from the Cherokee
Nation as a separate band.(Emphasis added)[Letter, decision of 20
September 1949, Assistant Commissioner for Indian Affairs John H.
Provinse to Houston B. Teehee, attorney for the Seven Clans Society]
The main obstacle to United Keetoowah Band's organization under OIWA had
been the problematic Kirgis opinion. Provinse's interpretation shows how
the Band won a congressional reevaluation the Kirgis opinion in light of
the union of all Keetoowah factions as a Band, and came to have the same
status as the Creek Towns. Provinse's immediate purpose in setting out the
Department's decision on the matter to Houston Teehee obviously was to
prevent confusion in the UKB organization due to the emergence of splinter
groups. At the same time, it did not prevent the possibility of the
creation of a separate tribal organization of Cherokees, such as a
resurrected Cherokee Nation, as long the new group was not a faction of the
United Keetoowah Band.(Minutes, 16 November 1949, United Keetoowah Band of
Cherokee Indians in Oklahoma; *: IV)
For years following the recognition of the Eastern Band of Cherokees
in 1936 and the UKB in 1946, there remained "many factions and divisions of
opinion" among the "Civilized Tribes," not only among Oklahoma Cherokee
descendant groups. So, in northeast Oklahoma, the Cherokee Executive
Committee (under the leadership of President Truman's appointed figurehead
Principal Chief), as well as the Cherokee Executive Council, the Keetoowah
Society, Inc., the Knighthawk Keetoowahs, and the Eastern and Western
Cherokees, coexisted uneasily with the UKB. Levi Gritts pulled the Society
out of the reorganization effort when he saw he had lost control. The Seven
Clans Society faction of the UKB, under the leadership of Eli Pumpkin,
hired a Cherokee attorney Houston Teehee. Acting District Director Dover P.
Trent advised Superintendent W. O. Roberts in 1946 that:
The Seven Clan Society, the Night Hawks and certain other groups of
Cherokees were originally a part of the Keetoowah Society[, Inc.,] and
these separate groups were established as a result of disagreements
within the Keetoowah Society[, Inc.] In our discussions with Eli
Pumpkin it was suggested that it might be advantageous to the Seven
Clan group and the other groups if they would federate with the
Keetoowahs but they indicated that this would probably be impossible.
If the act passed by Congress recognizing the Keetoowahs offers any
particular advantage it appears that the only way by which the Seven
Clan group and the other groups can obtain any of the benefits will be
by federating with the Keetoowahs.(See Letter, October 16, 1946,
Acting District Director Dover P. Trent to Supt., Five Civilized
Tribes Agency, W. O. Robert, File # 43292-46)
The Pumpkin faction not only wanted a charter for land management purposes,
but separate organization and recognition. The reason his efforts failed
was not that the UKB was a subsidiary of Cherokee Nation of Oklahoma, but
because the Seven Clans Society was a part of the Keetoowah Band, or part
the Cherokee Tribe, rather than an independent entity.
Chief/Reverend Jim Pickup (1946-1954, 1956-1957, 1960-1967) succeeded
Chief/Reverend John Hitcher (1939-1946) upon the latter's death. Pickup
was the son of William and Nancy Pickup, a fullblood Keetoowah of the Wolf
Clan. Pickup was born at Tahlequah on 8 January 1884, Trustee of Cherokee
Nation trust properties since his appointment on 1 May 1949, Pastor of 20
Missionary Baptist churches in seven counties, the Pastor of the New Green-
Leaf Indian Baptist Church eight miles southwest of Tahlequah, Chaplain of
the Five Civilized Tribes Council, and Chaplain of the Cherokee Nation
Executive Committee.("Pages of the Past: Necrology: The Reverend Jim
Pickup/ 1884-1967," Cherokee Nation News, 23 July 1968)
The changing of the guard after the War and Roosevelt's death had an
immediated and chilling effect on the reorganization process. The UKB had
made it, just under the wire, because Termination was coming, and their Act
was almost obsolete before it could be signed. The Organization Agents were
gone, and the hostile new Muskogee Agency personnel, sensing the political
sea-change coming, resisted the completion of the UKB reorganization
process. Collier was out in 1945, and the red-baiting had put the IRA in
the deep-freeze.(Leeds 1992: 32)
On 1 November 1946, the Acting Superintendent - Muskogee Area W. O.
Roberts responded to a written request, from Chief/Rev. Jim Pickup of the
UKB, dated 14 October 1946, asking for a Federal charter for the Keetoowah
Indians:
It is apparent from your letter that you do not have a clear
understanding of the procedure for obtaining a charter. Regulations
have been prescribed by the Secretary of the Interior whereby a list
of eligible voters must be compiled and no election can be recognized
as valid unless at least thirty percent of the eligible members
participate in the election. He enclosed a copy of the Oklahoma
Welfare Act of June 26, 1936, directing Pickup's attention to Section
3.
If it is the desire of the Keetoowah Indians to organize under
provisions of the Act, . . . it is suggested you begin work on
preparation of a list of eligible voters and, if you can compile a
correct list, this office will give such cooperation as is possible,
looking to the holding of an election.
The Acting Superintendent added a peculiar P. S.:
The Act, mentioned in your letter, refers to the Keetoowah Indians,
and hence, the various bands who compose the Keetoowahs should be
included as eligible voters. In other words, the "Seven Clans", "Night
Hawks", and other bands of the Keetoowahs should not organize
separately.[Emphasis added](*: IV, File # 47672, in File # 43292)
The Department of the Interior denied any of the Keetoowah factions,
including the Keetoowah Society, the right to organize separately from the
UKB in 1946, but the controversy would not die. The Seven Clans and Four
Mothers groups attempted to organize and acquire land separately from
Cherokee Nation in the years following the passage of the August 10, 1946,
Act. On 9 December 1946, Superintendent W. O. Roberts advised Eli Pumpkin
of the Seven Clans Society of the group's rights under OIWA and IRA, and
cast a pall over the group's separatist aspirations:
Reference is made to your visit to this office last week in
connection with your desire to organize the so-called Seven Clans
Society as a separate group. You will probably recall that during
June, 1945, you submitted a list of the names of certain Indians who
you claimed were willing to deed their restricted lands to the Seven
Clans Society, but we wish to remind you that at the meeting held on
July 19, 1945, some ten miles north of Proctor, at which time about
125 Indians were present, as well as Mr. Trent of the Oklahoma City
office, and our Mr. Perkins, there were only two persons present who
said they were willing to deed their lands to the United States in
Trust for the use and benefit of the Seven Clans Society. In
connection with the list of names which you submitted, and the acreage
claimed to be owned by the individuals set out thereon, we found a
wide discrepancy when making a check of the matter in our land
section.
Notwithstanding any promises which may have been made to you by
Mr. Clyde W. Flynn, who was formerly employed here as Land Field
Agent, we believe the probability of any funds being appropriated for
the purchase of and by the new Congress which will convene in January,
1947, is extremely remote. By reason of Public Law no. 715, 95th
Congress, Chapter 947, 2nd Session, approved August 10, 1946, the Kee-
too-wah Indians of the Cherokee Nation, which includes the Seven Clans
Society, are now recognized as a band of Indians residing in Oklahoma
within the meaning of Section 3 of the Act of June 26, 1936 (Oklahoma
Indian Welfare Act) and hence will take the view the Seven Clans
Society is prohibited by law from organizing as a separate group. We
are fully aware of the fact you claim it is the desire of numerous
Indians of the Seven Clans Society to deed their lands to the United
States in Trust for the use and benefit of members of said Society,
but we do not believe this can be done under existing law. We think it
could be done by taking deeds in the name of the United States in
Trust for the Cherokee Tribe, or Kee-too-wah Indians, but we are not
unmindful of the fact this feature is objectionable to you. . . .
* * *
In conclusion, it is our desire to cooperate with you and those
Indians whom you claim to represent, but it is believed we must be
realistic and take into consideration the present provisions of law,
which apparently precludes the Seven Clans Society from organizing as
a separate group in accordance with your proposal.(*: IV)
When requests for separate reorganization continued to arise from various
Keetoowah factions, on 20 September 1949, Provinse reiterated earlier
findings that the factions must confederate with the United Keetoowah Band,
or perhaps seek separate legislation. Provinse added that "the only way by
which the Seven Clan group and the other groups can obtain any of the
benefits will be by federating with the Keetoowahs"(see Letter, 16 October
1946, Acting District Director Dover P. Trent to Supt., Five Civilized
Tribes Agency, W. O. Roberts, File # 43292-46) The Department's decisions
regarding the rights of the UKB as an entity recognized apart from Cherokee
Nation were always clear, denying the right of splinter Keetoowah groups to
reorganize apart from the UKB.[See Letter, 22 December 1947; see Letter, 23
June 1949, Houston B. Teehee to Acting Commissioner of Indian Affairs
William Zimmerman, Jr., requesting, to no avail, permission to organize
Seven Clans Society, with an enrolled membership of 214, under OIWA,
separate from United Keetoowah Band, "along the lines of the Thlopthlocco
Tribal Town of Oklahoma; see Letter, 11 August 1949, Houston B. Teehee to
Acting Commissioner of Indian Affairs William Zimmerman, Jr., requesting
the aforementioned, to no avail; see Letter, decision of 20 September 1949,
Assistant Commissioner for Indian Affairs John H. Provinse to Houston B.
Teehee, attorney for the Seven Clans Society]
In a Memorandum dated 14 November 1946, Associate Solicitor Felix S.
Cohen advised the Commissioner of Indian Affairs on the subject,
"Constitution and Bylaws for Keetoowah Cherokee Band:"
The other day in Oklahoma City the Rev. Jim Pickup, on behalf of
the Keetoowah Cherokee Band, asked my assistance in securing an
election on a constitution and charter for this band. I undertook to
transmit to the Office of Indian Affairs the present constitution and
bylaws of the band, which seemed to me adequate and acceptable but for
the fact that article 10 of the constitution (amendments) and article
5 of the bylaws (adoption) need to be amended so as to proved for the
approval by the Secretary of the Interior of amendments and for the
calling of an election by the Secretary of the Interior for the
adoption of the constitution and bylaws. May I suggest that you
transmit directly to Rev. Pickup an appropriate document upon which
the Indians may vote. They will want to familiarize themselves with
this document as soon as possible, and I can therefore see no reason
for delaying the submission of such a document pending the working out
of election details and proper lists of voters.
I understand that a list of members has been submitted to
Superintendent Roberts.
Either with the submission of the revised constitution or bylaws,
or as shortly thereafter as possible, there should be submitted for
the scrutiny of the interested Indians a draft of a corporate charter.
Associate Solicitor Cohen requested copies of any communications in this
matter.(See File 47672). Appended to Cohen's letter was a form:
APPLICATION FOR MEMBERSHIP
UNITED KEETOOWAH CHEROKEE BAND OF INDIANS OF OKLAHOMA
I do hereby apply for membership in the United Keetoowah Cherokee
Band of Indians of Oklahoma.
My name, address, age, roll number, degree of blood, etc. , are
as follows:
Name_________________________________ Address_________________
Age____________ Degree of blood______ Roll Number_____________
Roll number of parent________________
Name and ages of wife & children______________________________
Date______________, 1940.
________________________________
Signature of Applicant.
Recommended by:_____________________________________
Councilman for:_____________________________________ District.
This form apparently was the recommended form for the UKB's enrollment
applications, upon which the UKB base enrollees' cards relied.
The slow reorganization process of the UKB began causing problems for
all concerned. On 18 December 1946, the Accounting and Bookkeeping Division
at the GAO inquired of the Department of the Interior whether the
Department intended to do anything about the UKB's accounts:
Public Law 715, . . . relating in part to the status of the
Keetoowah Indians of the Cherokee Nation of Oklahoma, provides that
they shall be recognized as a band of Indians residing in Oklahoma
within the meaning of [the OIWA]. In this connection, it is understood
that upon completion of the necessary requirements, and the issuance
of a charter by the Secretary of the Interior, such band will attain
a corporate identity sufficient to participate in loans from the
revolving credit fund and to enjoy any other rights or privileges
secured to an organized Indian tribe under [the IRA].
Generally, upon the action of Congress on matters of this kind,
your office has requested, and this office has prescribed separate
tribal accounts in order to control credits and expenditures of funds
identifiable to the particular band or tribe. However, in this case no
request has been received and, in view of the lapse of time since the
enactment of the statute, question arises as to whether segregation of
the funds of the Keetoowah Indians is contemplated. In the event of
your affirmative reply, information should be furnished as to the
balance identifiable as funds of these Indians, whereupon action will
be instituted to establish Keetoowah moneys in accounts identified
with such Indians.(*: IV; File # 52101, AB 3. 1 DMJ)
The response came from Walter V. Woehlke for the Commissioner on 24 January
1947:
The recognition of this group of Indians as a band, provided in Public
Law 715, involves no segregation of funds at this time.
The surnames included Mountjoy, Hicks, Woelhke, and Emery. The Department
was aware that the Band's reorganization could take some time.
On 8 January 1947, Indian Affairs Chief Counsel Ted H. Haas notified
the Department (Hicks) by teletype:
CONGRESSMAN STIGLER DESIRES TO KNOW STATUS KEETOOWAH ORGANIZATION AND
CONSTITUTION PLS TT THIS INFO

HAAS
Hicks responded 9 January, 1947:
KEETOOWAH CONSTITUTION SUBMITTED BY COHEN ON BEHALF OF REVEREND PICKUP
WAS DRAFTED IN NINETEEN THIRTY NINE BY DWIGHT AND EXENDINE. PROVIDES
FOR SINGLE ORGANIZATION. SUGGESTIONS HAVE BEEN MADE THAT CONFEDERATED
ORGANIZATION WOULD BETTER SERVE NEEDS OF KEETOOWAHS. ONE CONSTITUTION
AND ONE CHARTER FOR KEETOOWAH BAND CONTAINING PROVISION WHEREBY EACH
CLAN ORGANIZATION IS GRANTED SEPARATE SUBCHARTER. LETTER TO THIS
EFFECT HAS BEEN DRAFTED TO SUPERINTENDENT ROBERTS AND REVEREND PICKUP
AWAITING ZIMMERMAN'S SIGNATURE.
EOH:LEG HICKS
cc: Tribal Relations.(See *: IV; File # 10144)
The answer came from the desk of Assistant Commissioner William Zimmerman,
Jr., on 20 January 1947, in separate letters to Five Civilized Tribes
Agency Superintendent W. O. Roberts, and to Rev. Jim Pickup.(*: IV; File
# 47672-46, in Washington, D. C., and Ft. Worth NARA, surnamed by Hicks,
Mountjoy, Cooper and Haas) Zimmerman recalled the 1946 Act, "recognizing
the Keetoowahs as a band within the meaning of Section 3 of the Oklahoma
Indian Welfare Act, thereby making them eligible for organization under
that Act." He continued:
The proposed constitution submitted to this Office by Associate
Solicitor Cohen on behalf of Reverend Pickup was one that was drafted
in 1939 with the assistance of Mr. Ben Dwight and Mr. A. A. Exendine
who were Organization Field Agents. At that time it was proposed that
the Keetoowahs would be organized as a single body. However, in
reviewing the files I find that the Keetoowah Society is divided in to
approximately six separate organizations, each operating independently
of the other. In view of this, we are wondering if a confederated
organization would not serve the needs of the Keetoowahs better than
a single organization. There could be one Constitution and Bylaws and
one Charter for the Keetoowah Band containing a provision whereby each
sub-organization in the band could be granted a separate sub-charter.
In the Oklahoma tribal organizations most of the powers are contained
in the charter. Therefore, a confederated organization should work
satisfactorily among the different independent organizations within
the Keetoowah Band.
Since the Tribal Relations Unit has no representative in
Oklahoma, most of the preliminary drafting of the constitution and
charter and the subcharters will have to be done in this Office. We
should like to have your views as to the type of organization which
you think will best fit the needs of the Keetoowah Band. Also, we
should like to know the names of each of the separate organizations
within the Keetoowah Band and approximately the total membership in
each organization. Is our information correct that each of these
organizations are active and independent to a large degree of each
other? On what matters do the groups act together? In other words,
what are the present functions of the Keetoowah Society? On receipt
of this information we shall formulate a proposed constitution which
may be discussed at meetings of the various Keetoowah groups and may
be revised to meet the needs of the band.
In his letter on the same matter to Rev. Jim Pickup, Zimmerman referred to
the draft 1939 Keetoowah Constitution. Observing that "at that time it was
proposed that the Keetoowahs would be organized as a single unit,"
Zimmerman said:
Since that date some of the groups within the Keetoowah Band have
indicated that they desire to organize apart from the other groups.
The Act approved on August 10, 1946, which recognizes the Keetoowahs
as a band within the meaning of Section 3 of the Oklahoma Indian
Welfare Act does not make provision for each group within the Band to
organize independently of the others.
Therefore, Zimmerman concluded:
[W]e are giving consideration to the formulation of a proposed
constitution and a charter for the Keetoowah Band with a special
provision whereby the separate organizations within the Band could
each be granted a separate charter. When such a constitution and
charter are formulated, representatives from the Five Civilized Tribes
Agency will meet with the members of the Keetoowah Band and discuss
the proposed documents. The constitution and charter can then be
revised to include provisions which will fit the needs of the Band. In
the meantime, we should like to have you present your views on the
proposal to organize the Keetoowah Band as a body of independent
organizations.
Pickup responded to Zimmerman in a letter of 12 February 1947 as Chief of
the United Keetoowah Cherokee Band of Indians in Oklahoma (See *: IV):
We were organized on June 9th, 1939, as in a general Organization of
all the Cherokee Indians wethere [sic] as groups or bands or clan.
This was headed in that manner way, and it was agreeable, and we are
not Partial with others from this Organization, as establitish [sic]
following Constitution and By-laws of the United Keetoowah Cherokee
Band of Indians, we believe we are entitle [sic] to a charter. This
Organization is an effort to bring all Indians together for the
purpose of enlightening the public, preserving Indians' cultural
values, seeking an equitable adjustment of tribal affairs, securing
and preserving their rights under treaties with the United States, and
streamlining with the Indians Affairs, Better Educational Advantages
and protections of Indians in their land rights, and this is what we
advocate, and Better farming and Better livestock raising, and better
homes. [Emphasis added. Pickup sent a second such Letter to the
Commissioner on 3 June 1947; in Fort Worth NARA]
The UKB is the Tribe Congress recognizes as the umbrella organization for
all the other Keetoowah groups whose members are eligible to enroll with
the UKB in 1946. In view of this, the members of Cherokee Nation of
Oklahoma who are enrolled in the UKB are eligible to establish a daughter
organization under the UKB Charter. [See UKB Charter, 3 October 1950,
Article 3. (d), (f), (o), (u)]. However, Cherokee Nation of Oklahoma, as
currently acknowledged, is not the umbrella organization for the UKB.
Cherokee Nation of Oklahoma's 1975 Constitution, at "Article XIV. Clans,"
says:
Nothing in this Constitution shall be construed to prohibit the right
of any Cherokee to belong to a recognized clan or organization in the
Cherokee Nation.
However, CNO cannot purport to charter such organizations as a tribe
reorganized under OIWA and IRA, as the UKB is authorized to do, because
these clans and societies are under the aegis of the UKB, not the CNO, and
because CNO it is not reorganized under those statutes.
On 11 June 1947, Congressman William Stigler wrote to Assistant
Commissioner of Indian Affairs John Provinse regarding the failure of the
UKB to receive a charter "which was approved under an Act of Congress which
passed last year." He understood that a charter had been submitted for the
approval of the Indian Affairs Office, but with no results. He requested
that Provinse investigate and expedite the matter.(See *: IV; File # 22631)
Provinse obliged Stigler on a Letter dated 12 June 1947, with assurances
that he was referring the letter to the Chicago Office, "with the request
that Stigler be informed promptly as to the status of the proposed
charter."(See *: IV)
On 20 June 1947, Acting Commissioner of Indian Affairs William
Zimmerman, Jr. informed Congressman Stigler of his recent correspondence
with Five Civilized Tribes Agency Superintendent W. O. Roberts and Rev. Jim
Pickup regarding the plans to resolve the charter issue by allowing the UKB
to create daughter organizations composed of the various subordinate
Keetoowah groups. Zimmerman referred to the subordinate groups as
"different independent clan organizations within the Keetoowah Band," whose
members also had UKB membership. Stigler replied on 26 June 1947 to
Zimmerman's 20 June 1947 letter, asking that Zimmerman inform him of
developments.(See *: IV; File 24482) Zimmerman also wrote to W. O. Roberts
on 20 June 1947, recalling the Office's 20 January 1947 request for
Roberts's views on tribal organization of the UKB, the present function of
the Keetoowah Society, and the total membership in the respective
organizations, to allow the formulation of a UKB Constitution.(See *: IV;
File # 22631-47 in Washington, D. C. and in Ft. Worth NARA)
On 21 July 1947, Superintendent W. O. Roberts, in obvious frustration,
tardily respond to Commissioner Zimmerman's request for information
concerning the UKB. It was clear Roberts never had liked the idea of UKB
reorganization, and that he favored working with Principal Chief Milam of
Cherokee Nation. Roberts claimed, "While we are not closing the issue of
whether to organize a 'Keetoowah' group, we believe that it is pertinent to
the situation to use caution in being responsible for any measure as
different [sic!] as Mr. Pumpkin would wish."(See *: IV; File # 27285-1947)
Elsewhere, Roberts added, "Mr. Pumpkin's suggestion properly interpreted
simply means that he wants to Government to take care of the group which is
with him." Now that the UKB was not going to be the vehicle for reviving
Cherokee Nation, Roberts clearly was opposed to the reorganization of the
Keetoowah Band, and did not attempt to disguise his essential hostility to
what he viewed as the Band's "communistic" aspirations. Referring to the
United Keetoowah Band Chief as David Pickup, Roberts concluded that the UKB
proper, already organized under their 1939 constitution, was:
less communistic but no [more] practical. His effort (he is an
ordained minister of the Gospel) seems to be that, if he could collect
into a common body certain Indians who are followers of his, they
could have a perfect Christian body associated together in the
fellowship of religious influence, that they would own their land,
work out their economic salvation something like the Mennonites in the
Dakotas. No one, who is fully cognizant of what this would mean, would
wish to impose this on even a segment of the Cherokee people.
Roberts purported to have reviewed all pertinent files with care, and
concluded, "No where in our files is there any information as to just who
are the various bands of Cherokees which qualify as members of the so-
called 'United Keetoowah' Indians." Roberts was unaware of the Wisdom study
of the Keetoowahs and ignorant of the legislative intent behind the 1946
Act, or he was dissembling. His other correspondence suggests he had done
sloppy research up to this time. See, for example, his comment to Rev. Jim
Pickup of 15 December 1947 (Letter, 15 December 1947, Superintendent W. O.
Roberts to Rev. Jim Pickup, in Fort Worth NARA):
From the correspondence in this office, I am inclined to believe that
there are differences between the Keetoowah Band and the Cherokee
Tribe, that they are not one and the same. The correspondence also
makes reference to a Nighthawk group or band.
Here, Roberts admitted to Pickup that the Agency retained a body of
correspondence in his office that led Roberts to these conclusions about
the UKB; yet, in his communications with the Commissioner, Roberts
continued to be somewhat at a loss for records regarding UKB organization
(*: IV; Letter, Superintendent Roberts to Commissioner Zimmerman, 11
December 1947) Cherokee Nation of Oklahoma Constitution, CNCA, 2 October
1975, at Article XVI expressly supersedes the old Constitution of Cherokee
Nation, enacted 6 September 1839. Even prior to the completion of the UKB's
reorganization, the Cherokee Nation, though it existed, had not
constitutional authority over the UKB.
Roberts had found that Eli Pumpkin, Chief of the Seven Clans Society
of the Cherokee Indians, did not want his group to be part of the "United
Keetoowahs." Roberts was so vague in his research that on the first page he
referred to the "twenty or thirty families" composing the Seven Clans, and
on the next page, to "some eighteen or twenty families" composing the same
group. Referring apparently his conversations with Rev. Jim Pickup, Chief
of the UKB, Roberts stated, "David Pickup has several times indicated an
interest in the 'Keetoowahs' but evidently his conception of the
'Keetoowah' idea is vague and not likely of any concrete expression."
Making a common mistaken inference, Roberts offered, "the term
'Keetoowah' has a generic meaning applicable to anyone who was a member by
affiliation or relation of a certain society in the Cherokee Tribe. The
term 'Keetoowah' seems to mean literally 'Night Hawk'. "One could as
appropriately conclude that the term "America" is synonymous with "National
Football League," based on one's scant knowledge of American history and
institutions. The 'Night Hawks' were, and are, a faction of the Keetoowah
Band. In 1946, Roberts had received a memo from Trent clarifying these
issues (see Letter, October 16, 1946, Acting District Director Dover P.
Trent to Supt., Five Civilized Tribes Agency, to W. O. Roberts, File #
43292-46), but Roberts chose to disregard Trent's letter. Roberts compared
the Keetoowahs to the Dog Soldier societies among various historical Sioux
bands:
NOTE: To illustrate the difference between an actual organized entity
in a tribe and general one, the Minnecongou band of Sioux was a
clearly knit entity in the tribe. It would be proper to say,
therefore, that there was a Minnecongou band of Indians and its
history has a traceable identity. The Dog Soldiers Society among the
Sioux was identifiable with each band in more or less degree, but was
generally applicable all over the Sioux Tribe. An individual,
therefore, might have been a member of the Dog Soldier Society, but
the historical significance and the concrete identity of such society
would be impossible to obtain at the present time. Likewise, a
Cherokee Indian might have been a "Keetoowah", that is a member of the
loosely knit and generic Night Hawks, but to reassemble any such
organization today would be literally impossible.
Roberts's comparison of the Keetoowah people to the Dog Soldiers societies
among the Sioux bands and Nation was groundless. The 1946 Act acknowledged
the right of the Keetoowahs to reorganize, without allowing splinter groups
the same right. D'Arcy McNickle's 1944 determination on the Band's status
had won the full endorsement of Acting Secretary Fortas and Congress.
Congress and the Secretary frequently have allowed single historical
tribes to divide into various bands or tribes, and to be recognized as
separate and autonomous entities, as in the case of the various Sioux and
Chippewa bands on all their separate reservations, in different states. The
Washoe Tribe of Nevada and California, while allowing autonomy to
individual member Washoe colonies or villages, have combined under a single
IRA Constitution and By-laws. The various Creek Towns organized under OIWA
and IRA with their autonomous governments, under distinct Constitutions and
By-laws, which in two cases stipulate that members of those towns may
enroll as full concurrent members of the Muscogee Creek Nation, with no
conflict. As Cohen (1982:6) states, "These and other subdivisions of
ethnological tribes are also 'tribes' for federal, political, legal and
administrative purposes." In Herring v. United States and Ute Indians, 32
Ct. Cl. 536, at p. 538 (1897), the Court of Claims ruled:
A band, being the lowest and smallest subdivision, confederates
more readily than any other form of corporate existence, . . . and may
be composed of Indians of different tribes or nations, and becomes a
de facto band by the extent of its membership, its continuity of
existence, and its persistent cohesion, subject to the control and
power of a leader having the recognized authority of a commander and
chief.
The different divisions of the Indians have not usually
originated from the conventional mode which organizes white persons
into political communities, but have originated as a condition in
fact, and when so existing they are recognized by the laws and
treaties as a separate entity, and held responsible as such.
In Dobbs v. United States, 33 Ct. Cl. 308, at pp. 313-317 (1898), the Court
of Claims found:
[A] nation, tribe, or band will be regarded as an Indian entity where
the relations of the Indians in their organized or tribal capacity has
been fixed and recognized by treaty; second, that where there is no
treaty by which the Government has recognized a body of Indians, the
court will recognize a subdivision of tribes or bands which has been
recognized by those officers of the Government whose duty it was to
deal with and report the condition of the Indians to the executive
branch of the Government; third, that where there has been no such
recognition by the Government, the court will accept the subdivision
into tribes or bands made by the Indians themselves.(Tully v. The
Apache Indians, 32 Ct. Cl. R., 1, 1896)
But in the application of this rule the court has had to go
further and recognize bands which simply in fact existed, irrespective
of recognition, either by the Department of the Interior or the Indian
tribes from which the members of the band came. Victoria's band of
Apaches was merely a combination of individuals from different bands
associated together for the purpose of waging war against the United
States. The band did not exist until its warfare began. It had no
geographical home or habitat. A ferocious sense of injustice induced
the Indians to prefer death to submission, and they fought the troops
of the United States until the band and its members were extinct
(Montoya v. The Mescalero Apaches, 32 I.D. 349).
In Montoya v. United States, 180 U. S. 261, at p. 266 (1901), aff'g.32 Ct.
Cl. 317 (1898), the Court sought to establish working definitions of the
terms "tribe" and "band":
We are more concerned . . . with the meaning of the words "tribe"
and "band." By a "tribe" we understand a body of Indians of the same
or a similar race, united in a community under one leadership or
government, and inhabiting a particular though sometimes ill-defined
territory; by a "band," a company of Indians not necessarily, though
often of the same race or tribe, but united under the same leadership
in a common design. While a "band" does not imply the separate racial
origin characteristic of a tribe, of which it is usually an offshoot,
it does imply a leadership and a concert of action. How large the
company must be to constitute a "band" within the meaning of the act
it is unnecessary to decide. It may be doubtful whether it requires
more than independence of action, continuity of existence, a common
leadership and concert of action.
While societies, clans and factions have emerged, changed or dissolved
among the Keetoowah people, the Keetoowahs are none of these. Among other
revivalistic voluntary associations, the Keetoowah Society (later known as
Keetoowah Society, Inc.) formed among the people who called themselves
Keetoowah, in Oklahoma, but not all Keetoowahs belonged to that Society at
its formation, and the Society has excluded many Keetoowahs since.
"Keetoowah" it is not the name of a clan, because clan descent runs with
the female line, and UKB membership, except in the case of the Keetoowah
Society and other voluntary associations within the UKB, never required
clan affiliation through the member's maternal line in one of the clans
represented among that particular voluntary association. Though almost all
the Keetoowah Band's factions claimed to incorporate all the Cherokee
clans, Four Mothers Nation incorporated clans of the Cherokee, Choctaw
(including Chickasaw), Creek, and Seminole Tribes.[Central Classified Files
of the BIA, Department of Interior. Box 463. Accessions 56A-588. Records
for 1948-1952. Five Tribes. 010. Legislation (011.-015). Correspondence
relating to Four Mothers Nation, a predominantly Creek organization]
Further, the clan names and their characteristics varied among the UKB
factional organizations, and still do. The Keetoowahs were united by common
descent, consent, and affiliation, who sought to reaffirm that unity under
a primary rule by adopting a charter, constitution and bylaws.
Roberts said he had responded to Pumpkin's bid to convert the lands of
his followers to "a community holding and with some sort of modification of
earlier tribal ways of management and political direction." Instead of
submitting these suggestions to the UKB Chief, Roberts turned them over to
Principal Chief Milam of Cherokee Nation, "for any comments he might wish
to make." Roberts suggested it would be a wise use of Milam's position to
let him visit with Pumpkin's people and make recommendations. Roberts
recommended against the pooling of the restricted or allotted lands of
members of the Seven Clans Society "anywhere in eastern Oklahoma."
Roberts closed with some general observations:
Since the proposals for an organization of the Keetoowahs, Seven
Clans, Four Mothers Nation, Goingsnake, and some two or three others
have been presented in the last few months, they have had some
investigation and study. While the study has not been exhaustive,
examination into the areas where these desires originate discloses
what amounts to a group of people with some Indian blood--not
necessarily full blood--who appear to be frustrated and discouraged by
circumstances around them. Frankly, this office is not impressed with
any recommendation for communal approach to the difficulties. It is
our thought that these manifestations of sociological dislocations are
symptomatic of spiritual and economic bankruptcy. We believe it to be
the responsibility of the Indian Service to do something about the
situation. The political effect, however, of an effort, such as Mr.
Pumpkin seems to have in mind, is certainly of doubtful value. It is
our general belief that, if roads can be built through these isolated
communities, if better school facilities can be developed, if a better
use of credit and other economic resources is attempted, if the
thoughts of the Indians are turned from within themselves to an
awareness of the situation about them, if their action is really
predicted on thinking rather than emotion, probably much can be done
to reestablish satisfactory living conditions among them.
Finally, in denying the value of anything the UKB proposed, Roberts damned
the entire reorganization enterprise:
Actually, no one could even approximate what these men want. They
really are expressions of frustrated individuals who, for one reason
or another, have not reached the degree of success or satisfaction of
life that they seem to feel they are entitled to, and they are looking
to some kind of past for their satisfaction. . . . Such are my
reflections on the Keetoowahs, the Night Hawks, the Seven Clans, Four
Mothers, Goingsnakes and other fragments of the past that, all but in
the imperfect memories of old men, are gone forever.
Roberts, who never changed his attitude, clearly based his conclusions on
his own scant and reluctant personal contacts with the UKB, on his limited
understanding of social anthropology, and most lamentably, on his own
political attitudes and biases. Roberts's highly subjective and ill-
informed stab at a sociological and ethnological analysis of the Keetoowahs
was ludicrous, if not libelous. His failure to acknowledge or discuss in
his report the findings from over ten years of documented negotiations,
field studies and monitoring by the Organization Field Agents and his own
predecessor was stunning. His obvious preference for dealing with Principal
Chief Jesse B. Milam and plan of using the latter as a "handler" for the
UKB leaders is telling. It suffices to say, his superiors ignored his
suggestions. Burdened with a Superintendent in the field who was visibly
reluctant to live with the 1946 Act, Zimmerman did not get around to
dealing with the UKB issue himself for several months.
On 27 July 1947, Levi Gritts stated in an interview for the Muskogee
Daily Phoenix the purpose of Keetoowah acknowledgment was not to be
mistaken for a reorganization of Cherokee Nation itself. He said, "If the
recognition had been as a Cherokee Tribe, or organization, it would have
had to include all the Negro and white persons living within the Cherokee
Nation." The "great number of Cherokee Indians as well as . . . repeated
suggestions of personnel of the United States Indian Service" motivated
these decisions, and the organization effort had full support of the U. S.
Indian Service, reuniting the various Keetoowah factions, for the purpose
of organizing them under the OIWA and IRA. The question remained, exactly
who in the Indian Service was lending the reorganization effort "full
support."
On 2 September 1947, Congressman Stigler reminded Commissioner
Zimmerman that he still expected the momentary arrival of the approved
Keetoowah charter.(See *: IV; File # 30869-1947) After a year of patiently
waiting, the United Keetoowah Band formally requested Secretary of Interior
William E. Warne's cooperation, as Congress had ordered. The Tribe insisted
that Warne approve the Tribe's Charter, and order preparations for a tribal
referendum on other Organic documents, so that the Tribe could conduct
business under OIWA [Letter, 19 September 1947, Chief James Pickup to the
Secretary of Interior; see *: IV] Senator Elmer Thomas of Oklahoma
forwarded a copy of the letter to the Secretary of Interior, J. A. Krug,
and prodded Krug to advise him when the Department intended to comply
[Letter, 24 September 1947; see *: IV] Oklahoma Congressman Stigler (2nd
District) also asked Acting Commissioner of Indian Affairs for the
Department of the Interior William Zimmerman what was holding up the
approval of the Constitution, concluding plaintively, "Will you please see
that this matter is giving immediate attention and advise me
accordingly?"[Letter, 25 September 1947; see *: IV] On 1 October 1947,
Tribal Relations Officer Erma Hicks forwarded a copy of the 19 September
1947 Pickup letter to Assistant Commissioner D'Arcy McNickle, asking for
his views on the UKB files. Citing difficulties in approving the roll for
the Tribe, the Assistant Commissioner indicated approval for the
Constitution would follow the UKB's approval of the roll. Secretary Warne
reported to Senator Thomas on the progress toward adoption of a UKB
Constitution and Charter [Letter, October 6, 1947; *: IV], echoing
Zimmerman's concern about the approval of the roll. In a letter that
probably was written by D'Arcy McNickle, Commissioner Zimmerman advised W.
O. Roberts, Superintendent of the Five Civilized Tribes Agency [Letter, 6
November 1947; see *: IV] that his office had reviewed the proposed
constitution and charter of the Keetoowah Band of Cherokee Indians along
with the legislative record, as well as the 21 July 1947 Roberts memorandum
about the UKB, and McNickle added:
Your letter . . . suggests that the various factions making up the
group are each striving to gain control of any organization that might
be set up; indeed, to favor itself as the body referred to in the
Keetoowah legislation. It was never the intention of the Office to
favor any faction and we have acted all along on the assumption that
the factions would come together in a united body. The list of
individuals compiled in 1942 by the Organization Field Agents, Mrssrs.
Ben Dwight and Albert Exendine, was understood to include individuals
from the different groups; the committee submitting the list,
consisting of John Hitcher, Nelson Too Late and Jim Pickup, was
understood to be nonpartisan.
The question of membership continues to be the basic problem. It
is our view here that we should revert to the nine districts on which
Keetoowah organization in the past has been based. . . . I suggest
that the matter of membership be referred back to these districts. In
order to achieve this I propose that a constitutional and membership
committee be created at this time. . . . The districts should be
called upon to elect representatives to the constitution and
membership committee, which might then be convened at a time and place
agreeable to all. As its principal order of business, this committee
should pass upon the list of names, numbering 3,678, compiled in 1942,
and determine whether this should serve as the basic membership roll
or whether it should be corrected. If it is taken as the basic
membership roll, the article on membership in the constitution might
well provide that corrections could be made any time within a period
of five years or other suitable period.
After this question of membership has been settled, we will
proceed to a consideration of the provisions of the constitution.
The Organization Field Agents moved in and tried to sort out the confusion.
As it happens, most members of the various Keetoowah groups at the time of
the 1942 UKB Roll were members of one or more of the other groups composing
the UKB. Having written this letter to Roberts, Zimmerman dashed off a note
of apology to Pickup for not responding the Chief's pleading letters about
approval of the UKB Charter. Zimmerman cited the Office's recent move from
Chicago as the reason he had been unable to answer. McNickle wrote a letter
for Zimmerman advising Pickup:
The problem of organizing the Keetoowahs has not gone without
attention, however. We recently wrote Superintendent Roberts and
perhaps he has been in touch with you. We have asked that he examine
further into the question of the basis of membership in the proposed
Keetoowah organization and I am sure he will want to ask you to help
in working this out. We will wait to hear further from Mr. Roberts.
[*: IV; 18 November 1947]
Zimmerman and his staff based the conclusions in his 6 November 1947 letter
to Roberts on the UKB organization files that Organization Field Agents had
assembled between 1934 and 1947. It is possible that Roberts relied too
much on his staff to research and write this report, but that seems
unlikely, since Roberts appeared to base his report on his own field notes.
Roberts knew plenty about the UKB organization effort before his own
involvement, though he affected convenient ignorance. Roberts attempted to
scuttle the UKB reorganization effort using ignorance as an excuse. Roberts
later attempted to reverse the Tribe's successes. In claiming to have read
all the available materials on the UKB, Roberts had denied the existence
and implications of Organization Field Agent Exendine's 1942 UKB report,
which Exendine had forwarded through Roberts's predecessor, Superintendent
Landman, to Zimmerman. Roberts should have consulted with Zimmerman, the
UKB and others to discover whether they had files pertaining to the UKB
situation from his predecessor's tenure before panning the tribe's efforts;
as it turned out, Robert did contact others only after receiving
Zimmerman's response. Roberts's response to Zimmerman's letter proves that
Roberts knew he should have looked around for any pertinent files before
declaring UKB reorganization a pointless exercise. A reference copy of the
Organization Field Agent A. A. Exendine's memo to Zimmerman (*: IV, dated
26 October 1942, cited above) appears in the file accompanying Zimmerman's
response to Roberts, in which Zimmerman charitably ignored Roberts's
outburst, while suggesting pointedly that the Commissioner was well-aware
of Dwight and Exendine's field work.[See *: IV; the reference copy of the
Exendine memo was File # 38084, 2 December 1947; Zimmerman's response to
Roberts was File # 27285-47; all these materials appear in File # 43292-46-
Cherokee Nation-068]
Roberts covered himself by reporting in his response to Zimmerman that
for several months, his office had devoted some time to "bring into more
active organization the several groups of Indians who have either organized
heretofore or are planning to do so," and that he was ready to favor the
Commissioner with a letter on the organization progress of the Keetoowah
Band of Indians. Roberts reported to Commissioner Zimmerman, alluding to
his lack of records, alleging that:
The files of this office are incomplete and apparently the
recollection of those who had to do with the organization is not too
clear. . . . I have asked several of the members of the Cherokee group
about information and their files. It would seem there is not much
available from the organization. . . . If the Office has time to do
so, I would like to have a little more complete resume of Office files
in this matter. . . . I could have a photostatic copy of the map which
you have made and return it to you. Otherwise, I do not know just how
I can get the information as to what was in the thoughts of those
arranging the plans for the organization. Doubtless, a good deal of
work was done by Mr. Dwight, Mr. Xendine and others.[See *: IV; File
# 35030, 10 November 1947, in Washington, D. C. and Fort Worth NARA]
Roberts did not mention whether he asked the tribe's permission to consult
with their tribal attorney, Earl Boyd Pierce, at his Muskogee office, a few
miles east of Muskogee; and considering that Mr. Pierce certainly had his
client-related files, as long as the UKB granted permission, Pierce
probably would have obliged Roberts by supplying copies of important
records related to the organization issue that remained in his custody.
Roberts described his investigations further, and offered an interesting
suggestion:
I have talked with Mr. Perkins, Mr. Dwight, Mr. Hitcher, Mr. Jim
Pickup and others, and we do not get a very connected story. It seems
that a Constitution and By-laws were proposed, were acted upon
properly by the so-called United Keetoowah Cherokee Band and that the
Constitution and By-laws as presented were recommended for approval to
the Secretary of the Interior, this action bearing date of February
20, 1942. It appears that later on a statement of the officials of the
organization under date of October 2, 1942, claim 3687. It then
appears that some members of the Cherokee Tribe for reasons not clear
sought to change the name of the group to the United Cherokee Band of
Indians in Oklahoma. The files disclose that in the records with
reference to the Keetoowahs [it] is marked in pencil or pen and that
United Cherokee Tribe is the official name. It appears that in 1939 a
convention for the purpose "of voting for or against a provisional
Constitution" was called and that later on in August, 1940 another
call "pursuant to the order of the United Keetoowah Band Council for
the purpose of election of officers" and in this call "nine" districts
were named.
In October, 1946, I attempted to bring the officers of the
Keetoowah group together for my information about the organization,
plans and procedures. Rev. Jim Pickup answered the request in the form
of a letter which he signed as Chief of the United Cherokee Tribe of
Oklahoma, and later on in person, and I have been in frequent
correspondence or personal discussion with Mr. Pickup since that time.
My last discussion with him was today and in the discussion I asked
several questions which I think need to be cleared up before we could
comply with your letter of November 6. In some manner, the idea that
there are "six" separate groups of the Keetoowah Indians has gotten
into the correspondence and the thinking of some of those who are
interested in the organization. While I did not have your letter at
the time of my discussion with Mr. Pickup, it is clear that the
membership element is not fully resolved, that there are rival
organizations or at any rate difference of opinion as to who should be
representative of the Cherokee Nation.
The question arose some weeks ago in an effort to set out a means
of selection of an Attorney to represent the Cherokee Nation in the
matter of its claims, if any, against the United States before the
Claims Commission. As matters now stand, the assumption is that there
are "nine" groups of Cherokees, that each group should select a
representative, and that all of the representatives should come
together for the purpose of selecting the Attorney; however, it also
appears that the Keetoowah group wants to make selection of their own
delegates. It is obvious, of course, if they have 3500 members or
more, and in fact Mr. Pickup claimed 5000, that they would overlap
several of the communities - might have members in all "nine" of the
divisions. It is, I think, accurate to say, however, that the whole
Cherokee situation is shaping up in such a way as to be indicative of
a general desire of a large number of the Cherokee people to join
together in some kind of effort to protect the lands of members of the
group, to try to do something about the education, the health of the
neglected areas and to, as Mr. Pickup stated, help the Indian Service
"to reach out and get to the Indians who need help."[Emphasis added]
Roberts addressed the distinctions among the various Keetoowah factions --
including in the United Keetoowah Cherokee Band the Keetoowah Society,
Inc., the Cherokee Immigrant Indian Group (a. k. a., Eastern Immigrant
Cherokees, Eastern and Western Cherokees, or "the Foster faction"), the
Four Mothers Nation, Seven Clans Society (a. k. a., Goingsnake Fire), and
the Medicine Society -- by seeking to blur those distinctions. Roberts
sought to avoid segregating the groups regionally, even though Wisdom and
others had pointed out that most of these groups had some particular
territory, though most had members in more than one county.(14: I) The
result was that the BIA expressly identified the UKB population with the
service-eligible (quarter-blood or more) and needy Cherokee population
remaining in 1946 within the old boundaries of Cherokee Nation. However,
Roberts lacked the map of territorial boundaries:
We do not have a map delineating the "nine" divisions.
Apparently, the map was made by Mr. Dwight and Mr. Xendine [sic!
Interestingly, Roberts consistently misspelled "Exendine"'s name] with
some help in this office. The original of it is apparently not here
and we do not seem to be able to trace it.
A very poor photostatic copy of the map in question appears in the UKB
files in the National Archives. The district boundaries on the map, marked
in carmine pencil, resemble those of the old Cherokee Nation, and are the
same as the present boundaries, but the correspondence characterizes them
as the territorial districts forming the basis of the old Keetoowah
organization. Most of the population then, as today, resides within five
districts out of the nine, and within five Oklahoma counties out of the 14
in northeastern Oklahoma. Roberts knew that a tribe needed an identifiable
territory, even though in the case of Oklahoma, no reservation remained for
the UKB to claim. There still were restricted lands, trust lands and tribal
lands scattered about. It seemed sensible to use the various geographical
divisions or districts of the Old Cherokee Nation as UKB voting districts,
even though no particular faction was restricted to any of these individual
territories. Knowing that these various factions overlapped as many as five
of these old district lines in terms of the distribution of their
membership, Roberts hoped to forge unity among the factions by melding them
geographically, while allowing them to avail themselves of the plan
Zimmerman favored. Zimmerman wanted to allow the various bands of
Keetoowahs to obtain separate charters through the UKB itself, and function
under the UKB's federally-recognized umbrella (Article 3 of the 1950 UKB
Charter provides the means for factions to obtain these charters). What
remained was to bring the various Keetoowah factions together:
Mr. Pickup has set December 10, 1947 as a time for bringing together
all the officials and as many members of the Keetoowah group as he
can. The meeting is to held at Hulbert, Oklahoma at 10:00 o'clock a.
m. and will have wide publicity. I am arranging to be there and I
would like to know, first, is there an approved Constitution and By-
Laws in the Indian Office; second, is there a list of the 3687 names
who are alleged to have joined in a vote for approval of the
Constitution and By-laws and third, since the proposed Constitution
and By-laws provided for a Chief, what, if any, effect will such
position have in relation to that of the Principal Chief (Mr. J. B.
Milam, Claremore, Oklahoma) appointed by the President?
The Principal Chief of Cherokee Nation was the trustee of Cherokee tribal
property, from which UKB property was not segregated in the 1946 Act, or by
secretarial action from then on. Forseeing the probability that the UKB
territorial boundaries would overlay or fall within those of the Cherokee
Nation, Roberts hoped to avoid balkanization of Keetoowah factions on
distinct land bases. He continued to hope that Jesse B. Milam, current
Principal Chief of Cherokee Nation, would take an active role in the
reorganization effort. Perhaps he hoped that Milam would run for, or better
yet, accept the office of Chief of the Keetoowahs over Pickup and the other
chiefs. After all, Milam was a member of the Keetoowah Society, Inc., which
apparently enforced no blood quantum requirement for membership. However,
since Milam had very little Indian blood, he was even less eligible at the
time for UKB enrollment than was the tribe's attorney, Earl Boyd Pierce,
who was one eighth Cherokee. Anyway, Milam, who already was in declining
health, was not interested in joining into the UKB's political fray. Milam
responded neither to the entreaties of the Superintendent nor of the
Commissioner, who urged Milam at least to take a position on the UKB and
its reorganization.
Roberts made some interesting remarks about the "Cherokee group":
It is my observation that the Cherokee group [it is unclear here
whether he was referring to the Cherokee Immigrants, Eastern
Immigrants, or Foster Faction, or the class of Dawes enrollees] is
less organized, more disintegrated than the others. It seems to me,
however, if we are to get the support from a considerable number of
Indians in a live and active program in rehabilitation and social
betterment, some kind of organization is indicated. Inasmuch as the
Keetoowah organization has not only the benefit of law, but of several
years' effort, it of course, would seem to me that we should revive
and bring up to date the Indians' interest in this organization. I am
sure that there is a growing interest in it, probably because of the
questions I have raised, which I assume the Indian people are taking
as evidence of official interest in the development of their
organization. . . . I would like to be able to present to the people
on December 10 a comprehensive outline of suggestions and plans for
bringing the Keetoowahs into a full and effective organization.
Superintendent Roberts wrote to Commissioner Zimmerman again in about two
weeks to report additional findings (*: IV; Letter, 22 November 1947, File
# 38084):
Rev. Jim Pickup has held several meetings of Indians at various
points of the Cherokee country and has been in the office several
times. He appears to be much interested in the completion of the
organization of the Keetoowah group. . . . It is my belief that Mr.
Pickup's ideas envisage an organization of the Cherokee people in a
sort of fraternal society for mutual good will and social advantage.
. . .
Mr. J. B. Sixkiller . . . was present, giving me a rather
extensive outline of the Keetoowah movement. He stated that it had all
died out in the 30's, that the work of Mr. Xendine and others had had
something to do with the reorganization of it, that he personally was
an officer in the group about his home. He indicated the purpose of
the organization is all inclusive of the interests of the Cherokee
people, that while not all Cherokees are members, nevertheless, the
Keetoowahs in his opinion are representative of most of the Cherokees,
having members in all of the sub-divisions and that in a general way
would be interested in the Keetoowah organization, but is skeptical of
any worthwhile results because as he stated so many of the leaders are
breaking away. It seemed to be Mr. Crawford's opinion that once a
leader gets started he finds it difficult to work with other leaders,
and that the organization tends to disintegrate into little groups,
each with a leader. Mr. Crawford was especially displeased with Levi
Gritts, a former organizer and leader of the Keetoowah group. Mr.
Crawford stated and was corroborated by others that "Mr. Gritts had
broke away from the main organization, that he wants to run
everything."
Further inquiry seems to indicate that Levi Gritts has separated
himself and a group of followers from the main organization and that
there is considerable opposition emanating from the Gritts'
organization against the group dominated by Rev. Pickup, Mr. Sixkiller
and others.
I was informed that the organization of which Mr. Pickup is the
present leader has employed an attorney, Mr. Earl Boyd Pierce of
Muskogee, Oklahoma, who is to act as adviser and in behalf generally
of the Keetoowah society [sic, "society" not capitalized].
Mr. Eli Pumpkin, while not present at the Bull Hollow meeting,
has several times indicated his interests in the Seven Clan Society,
which seems to have close relation with another organization, more or
less known as the Nighthawks. It appears that there are about thirty
families who are followers of the Seven Clan Society, or Nighthawks in
the northern Cherokee area. It is alleged that the Nighthawks have
members throughout the Cherokee group. The aims of this group are to
set up a territory similar to a reservation, placing the lands in
restricted status, with title in the Federal Government for the group.
It is probable that this group is the most conservative of all of
them, inasmuch as the stomp dance and some other observations
allegedly of an older period are still observed by these groups.
Apparently, the Keetoowahs do not approve of the stomp dance while the
Nighthawks do. There are of course other differences, but up to this
time I am not aware of them.
I found differences of opinion as to just where the list of
members may be. Mr. Pickup thinks there are 5,000 members now. He
admits, however, no very formal way has been worked out to admit
members or to keep a list of approved membership.
Mr. Pierce has been invited to discuss the Keetoowah organization
which he proposes to do in the next few days. Inasmuch as all of the
recognized leaders of the Keetoowahs have expressed the fact that Mr.
Pierce has been selected as the spokesman for them, it appears
advisable to wait to see what he has to suggest.
The UKB was so pleased with Earl Boyd Pierce's efforts regarding UKB
organization that the Band extended him full membership, although he did
not otherwise qualify for membership. Earl Boyd Pierce eventually became
linked with Principal Chief W. W. Keeler and the affairs of Cherokee Nation
of Oklahoma. The common perception among members of the UKB today is that
Mr. Pierce had a conflict of interest with respect his representation of
the UKB when he took Cherokee Nation's Executive Committee as a client. As
events progressed, Pierce worked to the advantage of CNO, and to the direct
detriment of the UKB, but in the beginning, he strongly supported the UKB,
as attorney and as enrolled member.
McNickle advised Erma Hicks on 31 December 1947 that nothing
particular needed to be done in response to this memo for the time being
(*: IV; Memorandum, 12 December 1947, attached to File # 38084) McNickle
wrote for the Commissioner, responding to Roberts's 10 November 1947
letter:
We have made a thorough search of our files and as far as we can tell
the list of 3,687 names was never submitted here. I am not able to say
who would have this list unless it would be Mr. Pickup or some member
active in the organization efforts back in 1942.
I am attaching our file copy of the map showing the nine
divisions which, as I understand it, go back to the original
territorial districts forming the basis of the old Keetoowah
organization. [*: IV; Letter, 8 December 1947, File # 35030-47]
Zimmerman's letter advised Roberts:
Neither this Office nor the Department has ever approved a
constitution and bylaws for the Keetoowah organization, although we
have a proposed constitution here. It was upon examination of this
proposed constitution that the question on membership was raised.
Zimmerman's letter noted that before 1939:
Mr. Frank Boudinot and Levi Gritts were both active at one time
pressing for some type of organization. All discussions previous to
the enactment of the Keetoowah bill were premature since there was not
authority to recognize the group under the Oklahoma Act. We did urge
Boudinot and Gritts to attempt to bring all factions together, since
we were certain that if the Keetoowahs ever were to
organize it would have to be done on the basis of all persons claiming
affiliation with the Keetoowah idea or philosophy. In the beginning
obviously it was a kind of select organization of relatively pure-
blood Cherokees who were interested in maintaining Cherokee culture
and custom and in opposing the efforts of the Government to destroy
the tribe and the culture. Mr. Boudinot is now dead and Levi Gritts is
opposed on personal grounds by a number of Cherokee Indians. Whatever
his personal failings may have been in the past, you will find that he
is full of the history of his people and if you have not previously
talked to him, I suggest that you attempt to do so. He, better than
anyone else that I know of, can explain the history of the Keetoowah
movement. [*: IV; Letter, 8 December 1947, File # 35030-47]
Recall that in 1947, the Keetoowah Society, Inc., resumed its efforts to
obtain separate reorganization from the UKB [Letter, 26 July 1944, Gabriel
Tarepen to Commissioner of Indian Affairs William Zimmerman, Jr., in
Central Classified Files of the BIA, Department of Interior. Box 463.
Accessions 56A-588. Records for 1948-1952. Five Tribes. 010. Legislation
(011.-015). File # 29941-44] The Oklahoma congressional delegation
responded to the requests of the United Keetoowah Band, but not the
separatist requests of the Keetoowah Society, Inc., or of any other group.
Whatever else the Keetoowah Band was as of 1947, it was no longer a
creature of the Keetoowah Society, Inc., or of any other particular
Keetoowah faction. Zimmerman clearly intended to keep things that way:
I would not say that we should refuse to cooperate in forming an
organization if the plans do not include all members of the Keetoowah
group, but I should hesitate to give any encouragement to any
factional organization. [*: IV; Letter, 8 December 1947, File # 35030-
47]
To help clarify things for Roberts, Zimmerman sent him the Department's
file copy of the draft UKB Constitution and Bylaws, adopted in 1939 and
revised in 1942, along with Charles Wisdom's history of the Keetoowahs.(14:
I) The Wisdom study presumably had been the primary source for the 1937
opinion of Frederic L. Kirgis, Acting Solicitor to the Commissioner of
Indian Affairs, which found the Keetoowah Society was not a body eligible
for reorganization under OIWA. The purpose of the Department's UKB
organization work between 1937 and 1947 was to drive the various factions,
none of which was dominant and none of which was able to reorganize without
the others, into a united body within a distinct territory that disregarded
any geographic, social or unique philosophical or religious boundaries
individual factions might have claimed up to that time. Wisdom reported in
his 1937 narrative on the Keetoowahs that the "Nighthawk" faction of the
Keetoowah Society alone was "an organized and functioning social entity,"
and only that entity had to be dealt with as "a distinct and independent
community" by the Indian Office.(14: I) On the other hand, his own
narrative shows the "Nighthawks" experienced a 90% erosion of membership as
factions erupted from this particular group between 1906 and 1937. As a
highly syncretic cult (combining elements of true Cherokee traditions with
identified Creek, Oneida, Quapaw, and fundamentalist christian and other
elements), the Nighthawks represent the most polarized Keetoowah religious
faction. Voluntarily isolated in a relatively well-defined and contiguous
territory, and subscribing to strict rules and demanding membership
requirements which based membership eligibility upon the applicant's
matrilineal (clan) lines, Redbird Smith's "Nighthawk" Keetoowah Society
could not represent or affiliate with the other groups, and never wanted to
do so after 1924.
The unambiguous intent of Congress in 1946, and of the UKB and the
Indian Service in 1948, was that the United Keetoowah Band's membership was
to be inclusive, in the first instance, of only part of the Cherokee
descendancy, whose political interests remained distinct from those of
Cherokee Nation-related organizations (the Executive Committee and
Executive Council).
The UKB attempted to keep Superintendent Roberts informed and involved
in their deliberations, and they invited him on 12 December 1947 to their
regular meeting, in Delaware County, at the Bull Hollow C. C. Camp and
Community House.(72: IV) Having just received the 11 December 1947
instructions of Commissioner Zimmerman to investigate the UKB further, to
ascertain their purposes, membership and other information, he responded
very cordially, agreeing to attend, adding: "I am giving a good deal of
study to the Keetoowah organization. I think there is a good opportunity to
complete the organization work of this group, provided the people wish to
affiliate with it." The Indian Service, he said, was studying the UKB
membership issue. Roberts briefly indicated the difficulties at hand:
The early organization work appears to have been prior to the
enactment of the Keetoowah bill. Therefore, there was no legal basis
for the organization. Another complication is the fact that much of
the correspondence is divided -- some of it discusses the Keetoowah
Band, some the United Keetoowah Band and some of it the United
Cherokee Tribe.
From the correspondence in this office, I am inclined to believe
that there are differences between the Keetoowah Band and the Cherokee
Tribe, that they are not one and the same. The correspondence also
makes reference to a Nighthawk group or band.(70: IV)
To that last paragraph, one might suppose Chief Pickup observed, "Comes the
dawn." It is particularly interesting that here, Roberts admitted to having
a body of correspondence in his office that led him to these conclusions
about the UKB. Perhaps, as his interest had grown, Roberts finally had
discovered the forgotten treasures in his files. He continued:
I think we should need to know pretty definitely what the
Keetoowah group really is and the ideas and philosophy which draw the
people to it.
Furthermore, I would like to have several names of other leaders
or interested persons so that you and they might give me a better
basis of estimating the purposes and possibility of organization of
the Keetoowah group.(70: IV)
Roberts and Pierce exchanged very cordial letters, indicating their
eagerness to work together "perfecting the organization" of the UKB.(62:
IV)
Early in 1948, Superintendent Roberts reported to Commissioner
Zimmerman regarding his conference "of about one and one-fourth hours" with
"Rev. Jim Pickup, who is the Chief of the United Keetoowah Band of Cherokee
Indians, and his Attorney, Mr. Earl Boyd Pierce, on the subject of
perfecting the organization of the Keetoowahs and of visualizing the place
of this organization in the affairs of the Cherokee Indians. Roberts
obviously was quite taken with Pierce:
In the outset, may I express appreciation of the high order of
Attorney Pierce's comments, observations and recommendations. I truly
believe him when he stated that his interest and work has been out of
affection for the Cherokee people rather than any personal reward. Mr.
Pickup says frankly that as yet he has paid his Attorney nothing at
all.(73: IV)
Roberts appears to have learned more about Keetoowah history from this one
conversation than from any other source:
It is the point of view of Mr. Pickup and Mr. Pierce that the
original group was known as the Keetoowah Society; that it was under
the sponsorship, or at any rate close interest of Mr. Frank Boudinot,
a member of the Cherokee Tribe and [an] Attorney who lived in
Washington for many years. His local representative was Mr. Levi
Gritts, a near full blood Cherokee Indian. I am informed that the
Keetoowah Society was incorporated under the laws of the State of
Oklahoma and granted a Charter about 1920. There is no record of this
Charter in the Muskogee office.
I am further informed that the Keetoowah Society continued
through the years with more or less interest until an election in
1939, at which time there were two candidates for the position of
Chief of the Keetoowah Society; Mr. Levi Gritts, who was undoubtedly
the preferred candidate of Frank Boudinot and the group of Indians
over whom Mr. Boudinot had more or less influence; the other candidate
was John Hitcher, a respected and intelligent full blood Cherokee, and
who was elected to the position. Mr. Hitcher died in 1946 and was
succeeded in office by Rev. Jim Pickup. Mr. Pickup's Chieftainship was
verified by popular vote last year.
I am further informed that shortly after the election of 1939,
Levi Gritts gave public notice of his withdrawal from the Keetoowah
Society as represented by John Hitcher and others, and that he started
an active opposition to the leadership. Because of the opposition
aroused by Levi Gritts, it became necessary on the part of forward
looking leaders to resolve if they could the differences, but no such
resolution has as yet been effected.
Mr. Gritts claims to represent the Keetoowah Society. The efforts
of many other leaders to bring about unity resulted in their taking
the name of the United Keetoowah Band of Cherokee Indians. This is the
name to which Rev. Pickup subscribes; Attorney Earl Boyd Pierce, Mr.
Sixkiller and a number of other Indians espouse the completion of the
Keetoowah organization. In other words, Mr. Pickup's organization is
referred to as the United Keetoowah Band of Cherokee Indians. Mr.
Gritts' organization is referred to as the Keetoowah Society.
It further appears that the Keetoowah Society has a small
membership, total number unknown, the guess being anywhere from 100 to
200. The United Keetoowah Band is estimated to have a membership of
5,000, more than 3,500 of whom have actually signed a membership
indication.
The records of this office bear out the verbal statements of Mr.
Pickup and Mr. Pierce that the election of John Hitcher was well
advertised, the provision was made in each district of the whole
Cherokee group for the preferential expression of the body and that
John Hitcher was fairly elected by a very considerable majority. It
further appears that practically all of the former followers of Levi
Gritts deserted him because of his tendency to secede.(73: IV; 28: IV)
The Oklahoma congressional delegation responded to the requests of the
United Keetoowah Band, but not the separatist requests of the Keetoowah
Society, Inc., or of any other group. This is the first correspondence
clearly indicating that Roberts was comprehending the UKB's character and
circumstances. Roberts continued:
It further appears that some effort on the part of the personnel
at the Five Tribes to reconcile the differences of groups resulted in
the modification of the proposed contract which changed the terms of
it all to the United Cherokee Band. According to my informants, this
proposal entirely missed the point.
Summarizing the point of view expressed today, the United
Keetoowah Band of Cherokee Indians is and should be the representative
body employing the Keetoowah name. There is a membership of upwards of
5,000 people in the organization. Not necessarily all Cherokees belong
to this group, nor do they all desire the Keetoowah ideas.
Furthermore, I am informed that the Keetoowah idea in its inception
springs from divergent points of view. Originally, the Keetoowahs
represented in effect the north wing of the Cherokee Tribe. They were
principally the full blood or high degree and Indian blood and their
general thought was loyalty to the Government which they recognize as
"the north." They sponsored retention of the Cherokee traditions and
opposed the endorsement of white culture out of the theory that it was
in the latter sense a deviation from the true Indian principle that
resulted in part of the Cherokees joining forces with the Southern
Confederacy.
I am informed that the very modern concept of the Keetoowah idea
is [Civil War] Republican; that the Nighthawks and the rest of Texas
Cherokees and Arkansas Cherokees and what-not are [Confederate-Era
styled] Democrats. This rather amusing text is seriously indicated by
Rev. Pickup who by the way is always of serious mind and demeanor.(28:
IV)
The delicate question of the relationship between the UKB and Cherokee
Nation and Cherokee Tribe remained, and Pierce offered a clarifying
statement. In his remarks, Pierce hinted at the possibility that the UKB,
in his view, could become (or provide) the vehicle for the restoration of
Cherokee Nation:
There was some discussion as to how the Keetoowah group or groups
may fit into the general pattern of presentation of Cherokee claims
against the Government and how Attorney representation is likely to be
affected by it. There was a question of the specific expectation of
the two gentlemen as to what the Indian Service would do concerning
further organization of the Band. Attorney Pierce frankly stated that
the Band meant only a part of the Cherokees; that it would likely
influence getting all of them into the Keetoowah organization, but
that he saw no reason to believe that the completion of organization
work would in any way interfere with administration or the interests
of the Cherokee people as a whole.(28: IV)
Pierce's views were out of line with Washington's policy, but reflected his
own intent and aspirations. Pierce was looking out for the interests of his
paying clients, Cherokee Nation, from the beginning. There is no doubt that
he consciously used the UKB to get his foot in the door as an attorney for
the very lucrative Cherokee caseload, and he did not want the UKB rocking
the boat. The UKB's long association with Pierce was a saga of professional
treachery from the beginning, though many Keetoowahs believed in him until
he died.
Pickup and Pierce obtained the Superintendent's promise of an
interfaction meeting later that month. The purpose of the meeting was to
determine the course the UKB would follow, and all parties and factions
were supposed to participate, including the "Nighthawk" Keetoowah Society,
the Keetoowah Society, Inc., and the Cherokee descendant organizations:
The Superintendent has promised Mr. Pickup, the head of the
United Keetoowah Band of Cherokee Indians, to be present at their
meeting on January 29, 1948. This meeting is scheduled for the purpose
at their meeting on January 29, 1948. This meeting is scheduled for
the purpose of bringing together all of the interested people that is
practicable to do so and to give opportunity for representation from
all of the districts of the whole Cherokee organization and to attempt
to settle the directional trend of the organization. Levi Gritts and
others will be invited to be present. Chief Pickup and Attorney Pierce
recommended that the Superintendent not only attend but bring along
stenographic help to make notes of the meeting so that a thorough
understanding may develop. Both men were anxious to resolve
organization differences so as to avoid interference with proceeding
with tribal claims.(28: IV)
Clearly, the purposes of reorganization, from the viewpoint of the UKB,
included the aggressive pursuit of tribal claims. The "Nighthawk" Keetoowah
Society earlier had disavowed any role in the pursuit of such claims.
Principal Chief of Cherokee Nation Jesse B. Milam visited with Chief Pickup
and Earl Boyd Pierce on 13 January 1948, and the conclusion was that Milam
was persuaded that Pierce should be associated with the attorneys then
representing the Cherokees, though Pierce had been "cut off" from
representing the tribe only the previous year, due to his recent departure
from employment by the Indian Service. Here is where the potential for Earl
Boyd Pierce's representational conflict of interest probably began.(75: IV)
Superintendent Roberts recorded his observations of his 10 February
1948 meeting at the Muskogee office of Earl Boyd Pierce. Participants
included: the attorney for the Texas Cherokees, Charles Ed Frye; Pierce;
attorneys already presenting claims for the Cherokee Nation, Norvell, and
Dennis Bushyhead; as well as Houston B. Teehee, participating by phone,
representing the Seven Clans Society. The memo indicates the
Superintendent's understanding of the relative positions of the various
Cherokee groups, relative to claims, but also discusses the "Relative place
of the Keetoowahs." There was a consensus that the Texas Cherokees were to
be treated as a separate group, as contemplated in the Act providing for
the Claims Commission. Norvell was preparing specific briefing materials
demonstrating reasons for treating Texas Cherokees as a separate group.
During the discussion, the parties arrived at a consensus that they needed
to validate the work of several attorneys then interested and involved in
Cherokee claims against the U. S. Roberts observed:
all attorneys agreeing to pool their affairs and present their
separate interests in such a way that there will be no dissonance or
disadvantage to the Cherokees. Attorney Norvell, Sr., will be in
Oklahoma in about two weeks when the whole matter will be presented to
the Superintendent as a basis of the meeting proposing conclusion of
the recommendations to the Department for approval.(Memorandum of
Discussion in Office of Mr. Earl Boyd Pierce, 10 February 1948, by
Superintendent of Five Civilized Tribes Agency W. O. Roberts, in Fort
Worth NARA)
The Meeting in question was to be the Cherokee Convention of 30 July 1948,
perhaps the single most seminal event leading to the eventual open conflict
between Cherokee Nation and the UKB. Referring to the attorneys' discussion
of the UKB, Roberts wrote:
Concerning reference to the Keetoowahs, apparently all of the
Attorneys are interested for sentimental reasons in continuing with
arrangements to fully organize the Keetoowah band or group, if they
wish to complete organization. There was reference to Jim Pickup, Levi
Gritts and the unfinished work of Frank Boudinot, all of the members
present indicating an interest in being helpful in getting full
information to the Muskogee office and to otherwise be of assistance
in completing organization of the Keetoowahs. There was some question
of the extent of organization. Apparently, the sentiment favored a
Constitution and By-laws but that such matter of domestic relations,
membership, assessment and authority over the affairs of individuals
be exceedingly limited.(Memorandum of Discussion in Office of Mr. Earl
Boyd Pierce, 10 February 1948, by Superintendent of Five Civilized
Tribes Agency W. O. Roberts, in Fort Worth NARA)
The view of the lawyers was to simplify Cherokee affairs by limiting the
powers of the UKB; and it is certain that the UKB Council and members did
not share this view. As it turned out, partly due to the intervention of
the Chicago and Washington, D. C. offices of the Indian Service in support
of the UKB, the Charter, Constitution and By-laws were far more expansive
in delineating the inherent and retained sovereign powers and interests of
the UKB than "apparently" these gentlemen contemplated, and one of the
sovereign interests was the protection of UKB treaty interests. Earl Boyd
Pierce apparently failed to advocate for the sovereign interests of the UKB
at the 10 February 1948 meeting, now that he was safely assured of a
profitable role in prosecuting the Cherokee claims. Obtaining this plum
opportunity might have been Pierce's original incentive to accept
employment by the UKB without a retainer. The attorneys referred Roberts to
the widow of the late Rev. John Hitcher "of the Keetoowah organization for
details which could simplify completion of the organization." Consistently,
throughout the history of the UKB until the UKB obtained a permanent office
after the death of Chief Jim Gordon in the 1980s, the wives and widows of
Chiefs have been regarded more or less officially as the keepers of the
estate papers and affairs of their spouses.
Levi Gritts steadily lost his credibility, but not only because of his
"tendency to secede," between 1937 and 1949, though he continued his
struggle until his death at 78 on 27 January 1952.[Letter, 26 July 1944,
Gabriel Tarepen to Commissioner of Indian Affairs William Zimmerman, Jr.,
in Central Classified Files of the BIA, Department of Interior. Box 463.
Accessions 56A-588. Records for 1948-1952. Five Tribes. 010. Legislation
(011.-015). File # 29941-44] The Oklahoma congressional delegation
responded to the requests of the United Keetoowah Band, but not the
separatist requests of the Keetoowah Society, Inc., or of any other group..
Besides other possible legal difficulties, Gritts's personal business
practices as a hired lobbyist for the Keetoowah Indians' claims against the
U. S. probably were under suspicion among the Keetoowahs. A letter from
Harold Studie, Cherokee and a member of the Keetoowah Society, Inc., living
in Little Rock, Arkansas, to the Commissioner, of 13 September 1949 (*: IV;
File # 19378-49) offers some interesting clues:
L. B. Gritts, acting secretary of this society, is supposed to have
made contact, either in person or by representatives, with you on a
matter of Financial Settlement between the Federal government and my
tribe of people.
Mr. Gritts, in meeting with my people, has collected enormous
sums of money for traveling expenses in contacting your department.
His only report back to the people was, that he would have to wait and
get a written answer from you. He has been able to purchase a home and
a new automobile since then.
I would like, very confidentially, to hear your report of these
contacts, if any has been made, very soon.
Certainly, by 1948, rumors were flying about Gritts, and he had suffered
significant damage. It seems certain that Roberts gave credence to at least
some of these rumors, and at any rate, had reasons enough of his own to
dislike Gritts. It appears that D'Arcy McNickle, as Director of the Tribal
Relations Branch, was alarmed enough to respond:
Mr. Gritts has made numerous visits to this office in connection with
the proposals to organize the Keetoowah Indians. I do not know when
the first of these visits was made, but I believe I first met him
almost ten years ago. He came frequently with Mr. Frank Boudinot, and
I believe that these two, along with other interested persons,
obtained the adoption of the Act of August 10, 1946 (60 Stat. 976),
which authorized the Keetoowah Indians to organize as a Band in
accordance with Section 3, Oklahoma Indian Welfare Act.(Letter,
McNickle to Studie, 18 September 1949, *: IV; File # 19378-49)
Gritts advocated the general idea of passing the legislation, at least
until 1939. However, by 1940, the schism between Levi Gritts and the UKB
was irreparable, and Gritts certainly did not advocate the adoption of
legislation that would permanently install his adversaries as the
recognized Keetoowah tribal government. Recall that from 1944 to the date
the Act passed in April of 1946, the Keetoowah Society, Inc., attempted to
ask for separate acknowledgment legislation, for organization apart from
the UKB. [Letter, 26 July 1944, Gabriel Tarepen to Commissioner of Indian
Affairs William Zimmerman, Jr., in Central Classified Files of the BIA,
Department of Interior. Box 463. Accessions 56A-588. Records for 1948-1952.
Five Tribes. 010. Legislation (011.-015). File # 29941-44] The Oklahoma
congressional delegation responded to the requests of the United Keetoowah
Band, but not to the separatist requests of the Keetoowah Society, Inc., or
of any other group. As it was, most of Gritts's own former followers
abandoned the Keetoowah Society, Inc., for the UKB, and by 1950, the
Society, Inc., was defunct.
W. O. Roberts wrote again to Zimmerman on 7 January 1948, following up
on recent letters regarding the completion of the organization of the UKB
("Keetoowah Society, United Cherokees"), reporting that the Seven Clans
Society had contacted him to gain support for their efforts. Pumpkin in
particular was offended that Roberts was showing interest in Keetoowah
organization, while neglecting the Seven Clans Society. Pumpkin presented
an alternative view of the Nighthawk Keetoowah Society, as a former leader:
I am informed that the Seven Clan Society is a strictly
independent organization of some thirty to forty families, who
according to Mr. Pumpkin carry the traditions of early times, and are
the only true representation of earlier Cherokee culture. I am
informed that for a good many years the Nighthawk Society was the true
representation, but that they lost their identity or at least their
effectiveness by reason of the allegation that they turned from "the
true worship of God" through the Seven Clan Society idea to a mere
political entity; that they got away from the true faith and followed
the false Gods of politics.
Robert consulted with the followers and family of Eli Pumpkin, and
concluded that Pumpkin's ideas were pipe dreams, "Christmas caroling of
children." The question remaining, Roberts concluded, "is whether or not
enough unity can be established to get an effective organization based on
sensible outlooks."
When Mrs. Josephine Creekkiller inquired on 23 February 1948 about the
progress toward Keetoowah reorganization, the Acting Commissioner (in a
letter written by D'Arcy McNickle) advised, "it would be a mistake to
proceed on the assumption that organization of the Keetoowah band is in any
way connected with the prosecution of claims against the United States. If
the Cherokee Indians have claims against the United States it would be in
the name of the Cherokee tribe rather than in the name of a band within
that tribe."(*: IV; 18 March 1948, File # 5047-48; see also, Memorandum of
Discussion in Office of Mr. Earl Boyd Pierce, 10 February 1948, by
Superintendent of Five Civilized Tribes Agency W. O. Roberts, in Fort Worth
NARA) The UKB could not represent the entire Cherokee descendancy class,
because it was not Cherokee Nation, but a reorganized band that excluded
the majority of Cherokee Dawes enrollees and descendants, the majority of
whom, like Principal Chief Jesse B. Milam, already were less than 1/32
degree Indian blood.
In a strained but diplomatic tone, Congressman Stigler again requested
the Department's immediate approval of the proposed charter of the United
Keetoowah Band early in 1948, stating:
Your records will show that under date of October 1, 1947, your
office advised that the proposed charter was under consideration and
as soon as the membership body to be included was determined then
final action would result.
It would appear that sufficient time has elapsed to enable you to
advise us as to just what disposition has or will be made. Please give
this your immediate attention so we might inform the Keetoowah
Cherokee Band of Indians.
(Letter, 20 February 1948, Congressman W. G. Stigler to Acting Commissioner
of Indian Affairs, William Zimmerman, Jr., File # 4515). Zimmerman
responded weeks later, attributing his tardy response to the fact that "We
have scarcely been able to get to our desks for the past couple of weeks on
account of the various hearings which we have been attending." Zimmerman
reported differences of opinion prevailed regarding the whereabouts of the
tribe's roll, saying, "Evidently a list containing approximately 5,000
names was made up several years ago but no one knows where it is." Further,
he observed:
At a meeting held in Delaware County on December 18, these
various leaders came together but did not succeed in agreeing on a
plan of action. One leader for example, Ben Smith, indicated that he
was not yet willing to join with the other groups until he was
satisfied that the differences between the groups could be reconciled.
Zimmerman added that he "expected to have a further report when a plan of
procedure has been worked out"(Letter, 12 March 1948, Acting Commissioner
of Indian Affairs, William Zimmerman, Jr. to Congressman W. G. Stigler)
Stigler persisted in his pursuit of an early resolution:
It will be appreciated if you will continue to give this your
active attention and advise me as to any additional developments which
have occurred in the field. I am so anxious to see this brought to an
early conclusion.
(Letter of April 17, 1948, to John Provinse, succeeding Zimmerman as Acting
Commissioner)
On 24 March 1948, Chief Rev. Jim Pickup invited Superintendent W. O.
Roberts to a meeting of the UKB on 17 April 1948 at the Old Money Bean
Place east of Hulbert, Oklahoma to discuss new developments on UKB
organization.(Letter, 24 March 1948, Chief Rev. Jim Pickup to
Superintendent W. O. Roberts, in Fort Worth NARA)
The issue of claims representation gained a new wrinkle when the
Keetoowah Society, Inc., decided to strike out in a new direction:
It was reported today that Levi Gritts called a meeting of
Indians to select an Attorney to present claims of the Cherokee
Nation. The meeting allegedly took place Saturday, April 17, 1948.
Approximately 30 people were present.
It is alleged that the meeting was called in the name of the
Keetoowah Society; that it was representative of all the Cherokees
and that Gritts was the authorized and recognized representative. An
Attorney from Tulsa, whose name was not given, was allegedly
"employed" to act as Attorney for the Cherokees. The Attorney's wife
acted as Secretary and he acted as Chairman. Throughout the meeting,
Gritts was eulogized as indispensable to the Cherokee interests, and
that he should be considered as entitled to share in whatever returns
that might be obtained from any suit, claim or other presentation on
behalf of the Cherokee Nation through said Attorney.(Memorandum,
"Information relayed to the Superintendent by Attorney Earl Boyd
Pierce of Muskogee and by Rev. Jim Pickup of Tahlequah, each
separately, 20 April 1948, by Superintendent of Five Civilized Tribes
Agency W. O. Roberts, in Fort Worth NARA)
This meeting led nowhere. Gritts claimed Pierce was mean to him after the
Society, Inc., had declined his services. Gritts also claimed that Pierce
then took up with Pickup, who turned Roberts and the BIA against him.(Leeds
1992: 35)
On 30 July 1948 --, at the request of Acting Commissioner of Indian
Affairs Zimmerman -- Five Tribes Agency Superintendent W. O. Roberts, and
Cherokee Nation Principal Chief Jesse B. Milam, a meeting of the Cherokee
Nation convened at Tahlequah, Oklahoma for the stated purpose of
reorganization of Cherokee Nation.(See *: IV; Letter, 8 September 1948,
Acting Commissioner Zimmerman to Jackson Thomas Wolfe, Chairman, Keetoowah
Society, Inc.) The UKB supposedly was "well represented" on the Cherokee
Nation Executive Committee which arose from this Convention, because the
general understanding was that CNO itself was terminated, or soon would be.
The Keetoowah representatives selected out of the nine were J. B.
Sixkiller, Ben Smith, and Hill Stansill.(Minutes, Meeting of the Executive
Committee of the Cherokee Tribe, 3 September 1948, NARA; Stansill's
daughter was a member of the UKB Council and is a member of the Excise
Board; Leeds 1992: 36)
The Cherokee Nation Executive Committee never had the official
approval of the Secretary, and the participation of the UKB in the
Committee never became a matter of official notice until 1970. From the
standpoint of the UKB, the point of having some representation on the
Executive Committee was the same as the incentive for having representation
on the old Keetoowah Cherokee Executive Council that Levi Gritts had led
for four years during the 1920s. The Keetoowahs wanted a say in the
protection and control of Cherokee property interests.
On 18 August 1948, Daniel E. Murphy, Acting Superintendent at Five
Tribes Agency, after complaining about the Keetoowah protests of the
Cherokee Convention due to the refusal of the assembly to hire the Society,
Inc.'s attorney William N. Maben, noted in a letter to Commissioner
Zimmerman:
The contract will be submitted soon for approval. The minutes of
the convention were returned for correction and they should be
forwarded to your office within the week.
As I have stated before, I feel the meeting was well handled by
Chief Milam. Mr. Hyden concurs in this as does Mr. Finley, Supervising
Attorney.(See also, Leeds 1992: 36)
The "contract" to which Murphy referred was the Indian claims attorney's
representation contract for Cherokee Nation. Resolution No. 3 of the
Cherokee Nation Convention of 20 July 1948 authorized the Executive
Committee to make the contract outside of assembled convention. Almost
exactly ten years later, the Indian Claims Commission recognized the powers
of the Cherokee Executive Committee in connection with the Cherokee Claims
Docket 173 (see Additional Findings of Fact, September 14, 1961).
Muskogee Area Director W. O. Roberts responded to an inquiry from the
Committee in the form of a questionnaire, dated 15 May 1953, on the subject
of tribal organizations (see other data from this Report of 30 June 1953,
below). In 1953, Roberts found, in the case of Cherokee Nation or Tribe,
that:
The only tribal election was held in 1946 as a result of an invitation
by the Principal Chief and the Superintendent of the Five Civilized
Tribes to all Cherokee People to meet in the Old Capitol Building at
Tahlequah, Oklahoma, for the purposes:
1. To discuss, consider and undertake proper action to promote
the general welfare of all Cherokees in Oklahoma; and, to discuss
such other matters deemed appropriate by the convention.
2. To select a Standing Executive Committee to assist the
tribal officials in all Cherokee matters.
3. To select an appropriate Attorney or Attorneys with whom the
Cherokees by blood in Oklahoma will negotiate a contract to be
approved by the Commissioner of Indian Affairs authorizing said
Attorney or Attorneys to prepare, file and prosecute to a
conclusion before the Indian Claims Commission, or other forum
established by law, all legal claims of every kind and character
which the Cherokees by blood in Oklahoma have or claim to have
against the Government of the United States.
This is quoted from Public Notice dated July 1, 1948, To All Duly Enrolled
Cherokee Indians By Blood in Oklahoma.(Report, 30 June 1953, Muskogee Area
Director W. O. Roberts to the Honorable A. L. Miller, Chairman, Committee
on Interior and Insular Affairs. More data from this Report appears below)
On 18 September 1963, W. W. Keeler wrote a Letter to the Indian Claims
Commission, referring to the matter of the attorney fee to be fixed and
allowed in the aforementioned Cherokee Case, Docket No. 173-A, it was
stated:
. . . [T]he Cherokees were called in Conclave in June, 1948, to elect
an Executive Committee to elect an Executive Committee to select the
attorneys and to take any other actions deemed appropriate in behalf
of the Cherokees. I was elected one of the members of the first
Executive Committee. At its first meeting, held on the same day as the
Conclave, the matter of claims was discussed in detail. A group of
attorneys to represent the Cherokees of Oklahoma in all claims before
the Claims Commission was decided upon and the contract discussed. Our
Committee was very happy that the Claims Commission Act provided an
opportunity to consider all claims by Indian Tribes against the
Government. I remember quite well that the statement was made that we
would be perfectly willing to have a contingent fee of 10% because it
was substantially smaller than that which attorneys had been willing
to consider in the past. It was conceded to be especially favorable to
our Tribe because the attorneys were agreeing to carry on the fight at
their own expense. The only other member of that first Executive
Committee still living is Mr. C. C. Victory who confirms my
recollection of this discussion. . . . At no time was there any
objection to the agreement that I have described. . . .
The Keeler/Victory account does not disclose the concerns the Keetoowah
Society, Inc., among others, raised about the way the entire business of
that "Conclave" proceeded.
Note that this was the first occasion in which W. W. Keeler is seen
playing a visible role in Cherokee or Keetoowah affairs. Compare this
historical fact with Ross O. Swimmer's contentions in letter to various
persons from 27 April 1979 and 3 May 1990.
In 1964, Virgil N. Harrington, Area Director, echoing the report of
his predecessor, wrote to the Commissioner, concluding that:
The Cherokee Tribe is not organized in any form of corporate entity.
However, on July 30, 1948, following authority of your office and
proper public notice, a Convention of duly enrolled Cherokees, by
blood, in Oklahoma, was held in Tahlequah. At this Convention, the
Cherokee Tribe adopted certain motions and Resolutions.
Copies of Resolution No. 2, adopted at this 1948 Convention which
sets out the purposes of the Convention, were transmitted to your
office, along with Resolutions 1 and 5, adopted at this Convention,
with our letter dated September 16, 1948 (copies herewith). Your
letter, dated November 9, 1948 (copy herewith) advises. . . . "it does
not appear that it will be necessary for this office to take action on
the Resolutions at this time."
Copies of Resolution No. 3, which directed and authorized the
Chairman of the Convention to appoint a permanent Standing Executive
Committee of the nine members empowered to exercise during recess any
and all powers that this or any other assembly of duly enrolled
Cherokees by blood in Oklahoma could rightfully do in regular
assembled convention, were submitted to your office on August 23,
1948, in connection with the contract for employment of attorneys by
the Cherokee Tribe to prosecute claims against the United
States.(Letter, November 12, 1964, Virgil N. Harrington, Area
Director, to Commissioner of Indian Affairs; emphasis added)
Area Director Harrington cited these actions of establishing the Executive
Committee, along with the Act of August 20, 1964, P. L. 88-461 (78 Stat.
559), in reaching the following finding:
We consider those tribal actions were adequate, with the approval of
these Resolutions by the Secretary of his duly authorized
representative, to constitute the Executive Committee as the
representative body of the Cherokee Nation or Tribe of Oklahoma in all
Cherokee tribal matters.
However, even as late as 1964, the Commissioner or Secretary still had not
approved these Resolutions. Also, Harrington's files disclose that he knew
the Cherokee Nation was found incapable of reorganizing as such under the
OIWA and IRA, based on a determination by the Director of Lands [(MEMO TO
INDIAN ORGANIZATION, 25 October 1937, from Director of Lands (WDW) to
Daiker, Indian Organization (163618)] Harrington had made a note to file on
this particular Memorandum dated 6 December 1962. No wonder he did not
press the Principal Chief to reorganize. He realized that it would probably
take congressional action to address this problem.
Though the Cherokee Nation Convention of 20 July 1948 was an
unmitigated disaster, as far as Keetoowah Society, Inc.'s relations with
Cherokee Nation were concerned, the actions of the Convention had no effect
on the status of Cherokee Nation with respect to the Curtis and Dawes Acts,
or with respect to the reorganization either of the Cherokee Nation or of
the UKB under OIWA and IRA. The Keetoowah Society, Inc., saw the writing on
the wall, and characterized the implications as to their own organization's
future in a letter to Milam:
Charges are being filed against you as having used the office of Chief
as appointed by the Government, to weaken or destroy the function of
the Keetoowah Society Incorporated. The are also being charged with
attempting to deprive the Keetoowah Society Incorporated from
receiving benefits to which they are entitled under provisions of Act
of Congress in which this Keetoowah Society Incorporated has been
recognized as a Band of the Cherokee Indians, and are entitled to
certain benefits and privileges as such.
If you care to defend yourself, or justify your actions,
Keetoowah Society Incorporated Council will be in session Monday,
August 9, 1948, at Radium Springs, Salina, Oklahoma.(Letter, 3 August
1948, Levi B. Gritts, Acting Secretary, Keetoowah Society, Inc., to
Mr. J. B. Milam)
The Keetoowah Society, Inc., publicly protested the manner in which the
organizers advertized and conducted the meeting, and challenged the entire
proceeding as null and void, even though C. C. Victory was appointed to the
Executive Committee.(*: IV; Resolution, 13 August 1948, Keetoowah Society,
Inc., at Jay, Oklahoma) On 17 August 1948, the Muskogee Times-Democrat (p.
12) reported the Keetoowah Society, Inc.'s, condemnation of the actions and
Resolutions of Cherokees in Convention, particularly the seating of the
Executive Committee:
The resolution attacking the Tahlequah convention asserted that only
a few Cherokees had been notified . . . [and] that no voice had been
given the majority of those present, principally full bloods, in the
nominations and elections at the convention, and that Gritts had been
ruled out of order in his attempt to have a
convention chairman, secretary and committee nominated from the floor.
[17 August 1948, the Muskogee Times-Democrat (p. 12)]
Senator Elmer Thomas, and congressmen Stigler and Schwabe received copies
of the Society's resolution. The final schism between the appointed
Principal Chief of Cherokee Nation, Jesse B. Milam took place at the
Society's meeting, when the Keetoowah Society, Inc., retaliated for their
leaders' humiliation at the Cherokee Convention by voting unanimously to
expel Jesse B. Milam from the Society:
Expulsion of Milam was based on charges of "attempting to weaken or
destroy" the principles on which the Keetoowah organization was
founded and attempting to "deprive the Keetoowah" membership of rights
and benefits to which the organization was entitled under an act of
Congress as a recognized Cherokee band, Gritts said.
The Society scheduled an anniversary celebration on 20 September 1948 for
the granting of the U. S. charter to the Keetoowah Society, Inc. Daniel E.
Murphy, Acting Superintendent at Five Tribes Agency, notified Acting
Commissioner Zimmerman of this wrinkle on 18 August 1948.(*: IV) Murphy
complained that the Society had not extended the courtesy of an invitation
to the meeting to any Agency employee, and that none had attended.
Of course, Acting Commissioner Zimmerman ignored the Keetoowah
Society, Inc.'s protests regarding the Cherokee Nation convention, probably
because he already understood that the Keetoowah Society, Inc., did not
represent or lead the UKB government. On October 4, 1948, Principal Chief
Jesse B. Milam of Cherokee Nation plaintively wrote to Acting Commissioner
Zimmerman, asking "whether or not your office has approved of our meeting
held in Tahlequah sometime ago."(*: IV) Again, Zimmerman saw no need to
respond, since the Department clearly did not intend to extend formal
approval to the Resolutions from the July 20, 1948, Cherokee Convention.
On 25 August 1948, the UKB met at the Tahlequah Court House to write
another appeal for the approval of a UKB Charter.(Letter, 28 August 1948,
Chief/Rev. Jim Pickup to W. O. Roberts, "Union Agency," in Fort Worth NARA)
Their letter to Roberts about the August 25, 1948 meeting explained formal
resolution requested Secretarial approval of a Charter allowing them to
organize under OIWA/IRA. They voted to meet on 15 September 1948 at the
Superintendent's office in Muskogee. The Keetoowah Band sent the
transcription of their proceedings and adoption of resolution with a cover
letter by the Chief to Congressman Stigler (*: IV; File # 21428):
We who have been reorganized group, and it has functioned ever since
it has been organized as a group June 9, 1939, we feel like we are
entitled to a charter. Since we have organized we feel that we have
been recognized as a group of Cherokee Tribe of Indians. We ask you to
give this application attention, please, that we request you in the
future in this matter as the union agency of Muskogee, Oklahoma.
We have been organized under the Common Welfare Act June 26,
1936. We are asking under the provisions of Sec. 1. the following
provisions of the Oklahoma Welfare Act, of the Indian Reorganization
Act of June 18, 1934 (48 Stat. 784) as modified as applicable to
Oklahoma and should be considered in connection with the provisions of
the Oklahoma Welfare Act. Residing in Oklahoma, we the United
Keetoowah Cherokee Band of Indians in Oklahoma, we are all Dawes
Commission enrolled Cherokee Indians as Council of the group, are the
undersigned, the following names, with our Chief and representatives
of the group of the United Keetoowah Cherokee Band of Indians in
Oklahoma.
Signatories, representing some 6,000 Keetoowahs included Ben F. Smith, John
B. Sixkiller, Nelson Toolate, Ben Birdchopper, Richard Henson, N. J.
Crawford, William H. Peak, Joe Hitcher, Jack Wolfe, John Hitcher, James
O'Field, John Snell, Dave Standingdeer, Jackson T. Wolfe, John Flute, John
Bolyn, Charles Watt, John Cochran and Chief Jim Pickup.
Stigler referred the request to Acting Commissioner Zimmerman (*: IV;
Letter, 14 September 1948, File # 21428), with a request that the
Commissioner return the enclosures to files as soon as they had served
their purpose. On 29 September 1948 (*: IV; File # 21896), Superintendent
Roberts sent Acting Commissioner Zimmerman a set of documents including:
Resolution No. 1. In a letter of 15 September 1948, addressed to the
Superintendent, which transmitted a resolution of the United Keetoowah
Band of Cherokee Indians in Oklahoma for their proper recognition as
a Band of Indians. . . . signed by Rev. Jim Pickup, Chief, and John A.
Cochran, Secretary . . . and by the council members present, . . . ;
as well as Resolution No. 2 of 20 September 1948 (*: IV; File # 21896),
certifying approval by the Council and Assembly of the formal organization
of the Tribe under a constitution and by-laws for the continuation of the
organization; and, Resolution 3 of the same date, transmitting a notice of
the 9 June 1939 election adopting the constitution and by-laws; and
finally, Resolution 4 of the same date, transmitting the Constitution and
By-laws as adopted on 9 June 1939. Petitioning for recognition of those
documents by the Secretary, the UKB asked again for organization under a
proper charter signifying such recognition under OIWA, the Act of June 26,
1936. The United Keetoowah Constitutional Committee had consisted of Daniel
Hummingbird, John Muskrat, John Flute, Wilson Hummingbird and Ben
Birdchopper. Signatories of the resolutions included: John A. Cochran,
Secretary; Charles Watt; John Bolyn; Dave Standingdeer; Ned Crawford;
Benjamin Smith; John Ketcher; William Peak, Rev. Jim Pickup, Chief; John
Flute; Richard Manus (still, in 1993, representative of Goingsnake
District, on the UKB Council); Benjamin Birdchopper; Richard Henson; John
Snell; and John B. Sixkiller. In his cover letter, Roberts said:
There is evidence in the writings of the United Keetoowah Band of
Cherokee Indians that the Constitution and By-laws were submitted to
the Indian Office after the vote on 9 June 1939, indicating the desire
of the group for recognition. It appears that due to the lack of legal
authority the Department withheld its approval.
The United Keetoowah Cherokee Band of Indians of Oklahoma,
according to their decision on the 15th of September 1948, say that
all legal requirements for organization are now available and that the
constitution and by-laws that were to voted upon, are accepted by the
Band, and may be properly approved and that the organization may
function in full recognition of the Department's consideration and
approval.
This matter is submitted to the office with the recommendation
that it be approved.(*: IV; Letter, 14 September 1948, File # 21428)
Very reluctantly, Roberts went through the motions of cooperating in the
completion of UKB organization.
Roberts's real sentiments are perhaps most apparent in the a peculiar
statement of W. W. Keeler's, in his account to Levi Gritts about the first
Executive Committee meeting Keeler attended in Muskogee on 3 September
1948:
I am told that the only group that the Indian Agency will recognize is
this Executive Committee, even [though] your Keetoowah Band was
previously recognized by the Government. I have no interest in any way
in this matter from the standpoint of personal gain. I have a good job
and it would be against the best interests of my company for me to get
involved in politics. . . . I agree with you that the Cherokees should
be permitted to elect their own representatives, but that was not
done. Now that we are on this committee, I feel that the least we can
do is find out how we can best serve the Cherokee people. For
instance, why shouldn't a committee from the Keetoowah Band tell us
what the problems are, rather than have Mr. Roberts of the Indian
Agency or our legal group direct us.(Letter, 30 September 1948, W. W.
Keeler to Levi Gritts).
This was not the last, or the most significant, of Keeler's letters to
Gritts.
On 6 October 1948 (*: IV; File #'s 5993-47, 21573-47 and 21428-48),
Acting Commissioner Zimmerman wrote to United Keetoowah Band's Chief Jim
Pickup, still asserting confusion on the matter of Keetoowah organization,
given the continuing manifestations of Keetoowah factionalism, in the form
of smaller groups operating under the names of the Keetoowah Society, Inc.,
the Night Hawks, the Seven-Clan Society, the Medicine Society, and others,
adding:
We know that a Keetoowah organization was incorporated under
state law in 1905 and that earlier, about 1859, the Indians calling
themselves Keetoowah, adopted a written constitution, using Sequoia's
alphabet. Since those days, the group which started out as one body
has been split into a number of smaller groups and has operated under
different names, such as Keetoowah Society, Incorporated, the Night
Hawks, the Seven-Clan Society, the Medicine Society, and perhaps other
organizations as well. The 1946 law makes no provision for organizing
separate groups of Indians calling themselves Keetoowahs but
authorizes "The Keetoowah Indians of the Cherokee Nation of Oklahoma"
to organize under section 3 of the Oklahoma [Indian] Welfare Act.
For the moment, I see no way of proceeding with your request for
a charter. It will be necessary for the Keetoowah Indians to agree
among themselves on a list of members which should include all
persons, regardless of the group to which they belong, who can
rightfully claim to belong to the Keetoowah Indians.
Superintendent Roberts is aware of this difficulty and has been
trying for more than a year to work out a solution. We are awaiting a
further report from him.
Thus, Zimmerman laid on Roberts and on the Band itself the responsibility
of reining in the factions so that the roll could be approved, so the
Charter and other organic documents could stand.
On 12 October 1948 (*: IV; File # 23273), Superintendent W. O. Roberts
advised Acting Commissioner Zimmerman of the receipt of a copy of the
Commissioner's October 6, 1948 letter to Rev. Jim Pickup (*: IV; File #
21428-48). Roberts disagreed in part with Zimmerman, saying, "it is also
true that the Keetoowah Society held an election in 1939 for President of
the organization, at which time the organization was fairly well united."
The Superintendent and the Commissioner concurred, however, in finding that
"Night Hawks, The Seven Clan Society, The Medicine Society and others were
never seriously considered a part of the Keetoowahs in recent memory,"
adding that the Keetoowah Society, Inc., had an unknown population, while
the United Keetoowah Band had been operating under a cohesive
constitutional government for years. Roberts wrote:
At that election, the candidates were Levi Gritts and John Hitcher.
John Hitcher was elected, whereupon the defeated candidate declared
his intention of withdrawing from the organization and taking as many
followers as he could.
President Hitcher continued for a few months until his death,
holding the main body of the organization together under his
leadership. The Rev. Jim Pickup was Assistant or Vice President, and
acted as President until the next regular election, whereupon he among
others was a candidate for the office and received a majority of the
votes cast. The membership of the United Keetoowah Band of Cherokee
Indians is known to number more than 1500 names. No one has been able
to get an estimate of the following of Levi Gritts. As a matter of
fact, numerous and extensive inquiries fail to disclose any following.
Incidentally, Mr. Gritts calls the organization to which he belongs
the Keetoowah Society, Incorporated. He claims to be Vice President.
It may also be stated that Mr. Gritts declines to affiliate in any way
with this office, allegedly because the Five Tribes offices
successfully prosecuted him some years ago for fraudulent disposition
of another Indian's land and keeping the proceeds.(*: IV; Roberts to
Zimmerman, 12 October 1848, File # 23273)
On 25 February 1921, an anonymous "Loyal Cherokee" wrote to Secretary of
the Interior John B. Payne alleging that Gritts had served five years for
a forgery conviction.(Letter, 25 February 1921, "A Loyal Cherokee," to
Secretary of the Interior John B. Payne; Leeds 1992: 31) Gritts had
infuriated the Agency when he promised Congressman Stigler a detailed
report on their malfeasance.(Letter, 21 September 1945, Levi Gritts to
Congressman Stigler; Leeds 1992: 31)
Roberts recommended that the Commissioner simply ask Jim Pickup for a
copy of the United Keetoowah Band's membership list and get on with the
organization process:
I think that the United Keetoowah Band is quite willing to submit to
you an authenticated list of names of those Indians who consider
themselves members of this organization. Would it not be practicable
to write the President, Mr. Pickup, to this effect? Of course, it
will be impracticable to get all of the Cherokees to agree. There are
some who prefer to affiliate with the Keetoowah Society, Incorporated,
though this office can show no evidence to substantiate such
conclusion. Neither Mr. Gritts nor the Attorney who has represented
him is able to show, or at least willing to show, any basis of
membership or other affiliation with their organization.(*: IV;
Roberts to Zimmerman, 12 October 1848, File # 23273)
Earl Boyd Pierce's continuing role in the organization of the UKB apart
from Cherokee Nation under H. R. 341, P. L. 79-715, August 10, 1946,
included facilitating the transmission of the roll of the UKB to Assistant
Commissioner D'Arcy McNickle, following a meeting of the two at the Denver
convention of the National Congress of American Indians on 14 December
1948.(Letter, 15 January 1949) Whether his intentions included finding a
way to use the Band eventually as a vehicle for restoring Cherokee Nation
is not apparent from these documents. Pierce continued to treat the UKB as
a distinct client, albeit pro bono, notwithstanding approval of his
contract to be a Cherokee claims attorney at the Cherokee Convention. Of
course, he realized that there were other groups with their own retained
counsel for the purposes of achieving Section 3 recognition under OIWA,
separate from Cherokee Nation.
On the counsel of Earl Boyd Pierce, Chief Keeler continued to
cultivate his relationship with Levi Gritts, Pierce's old nemesis, by
continuing to correspond and to meet with him. In a letter of 10 March
1949, Keeler suggested that Rev. Jim Pickup "would back down as head of the
United Keetoowahs if it meant a united front and Government recognition,"
and that he intended to accept the invitation to attend the 15 March 1949
UKB meeting in Tahlequah. Keeler discussed the Executive Committee of the
Dawes Enrolled Cherokees:
I feel sure that this present Government organized Executive
Committee of the Enrolled Cherokees will recommend that the Keetoowahs
be recognized.(Letter, 10 March 1949, W. W. Keeler to Levi Gritts;
Anna Gritts Kilpatrick, Secretary, UKB).
Then Keeler said something truly remarkable about the UKB, over a year
before their reorganization was complete:
I, for one, would be willing to go a step further and recommend that
the present Executive group be dissolved and the Keetoowah
organization be the sole representative with the Government of the
Cherokees of Oklahoma, provided the Texas Cherokee group could still
remain a separate entity in their claims against the Government. This
line of thinking has gotten me to the point that I think maybe the
present Executive Committee shouldn't sponsor the "Cherokee
Foundation," but that it should be something started by the Keetoowah
organization (all Keetoowah groups united, of course).(Letter, 10
March 1949, W. W. Keeler to Levi Gritts; brackets inserted; Anna
Gritts Kilpatrick, Secretary, UKB)
Keeler already had been discussing the Cherokee Foundation notion with Earl
Boyd Pierce, to help needy Cherokees and to preserve language and culture.
This tax exempt organization would be able to take money from Indians and
non-Indains alike. Keeler obviously felt the best idea was for the
Keetoowahs to start the Foundation, since they had recognition as a tribe,
and C. C. Victory, Milam and Keeler all believed that Cherokee Nation would
be completely terminated within a short time.(Leeds 1992: 47-48) This was
a passing fancy, because the Cherokee Foundation was incorporated free of
ties with the UKB on 3 March 1952.(Leeds 1992: 48) Hoever, all of them
realized that many tribes would not be terminated in the forseeable future,
due to Zimmerman's classification of groups' readiness to be terminated.
They figured that the UKB would stay comfortably in the last category for
many years to come.
Chief/Rev. Jim Pickup and the UKB continued to participate actively in
the affairs of the Cherokees and the Five Civilized Tribes. The UKB met on
15 March 1949 to select UKB delegates to a meeting Superintendent Roberts
had convened of the Five Civilized Tribes. The UKB delegates were Richard
Manus, Ned Crawford, Daniel Hummingbird, Ellis B. Sanders, John Cochran,
Rev. Jim Pickup, Ben F. Smith, William Peake and J. B. Sixkiller.(Letter,
17 March 1949, Rev. Jim Pickup to Superintendent W. O. Roberts)
Characteristically, Pierce intervened to eliminate the risk that the UKB
would have any representation on the National Executive Committee, putting
Pickup into the position of Chaplain to the Five Civilized Tribes. Pickup
ended up being Chaplain both to the Cherokee Nation Executive Committee and
to the Five Tribes. Pierce figured the best way to manipulate a preacher is
to find a way to keep his head down and his eyes closed.(Letter, 21 March
1949, Earl Boyd Pierce to Superintendent W. O. Roberts; Leeds 1992: 47)
The Indian Service continued with its rehabilitation plans for the
Five Civilized Tribes. While the UKB had made selections of their
representatives to the Five Civilized Tribes meetings, Superintendent W. O.
Roberts preferred that the Executive Committee of the Cherokee Nation make
the selection for the Cherokees. Earl Boyd Pierce dictated a letter to
Superintendent Roberts in the presence of Chief Jim Pickup about the
matter, saying:
Mr. Keeler will call the Cherokees together within the very near
future and you will remember that the United Keetoowah's are fairly
well represented on the National Executive Committee. However, should
your office think it proper, it would be well for the persons selected
by the Keetoowah's to be notified of the meeting and be given an
opportunity to attend and express themselves. For after all, they are
full-blood Cherokees and are keenly interested in the development of
any program calculated to solve their problems.(Letter, 21 March 1949,
Earl Boyd Pierce, Esq., to Superintendent W. O. Roberts, Fort Worth
NARA)
The Keetoowahs reiterated their desire for completion of reorganization, in
order "to be fully recognized under the special Keetoowah Act of Congress."
The Keetoowahs reiterated their claims over their own "domestic relations,"
in such things as preventing the further relinquishment of restrictions
upon restricted Indian land, maintaining restrictions upon lands of
deceased restricted Indians, advancing rehabilitation of restricted Indians
in the areas of educational loans, making land, home and business
purchases, and advancing their general social betterment. They also sought
cooperation from the State of Oklahoma in preventing the needless erosion
of individual restricted land holdings, under the State Welfare
Commission's prevailing policies regarding old-age subsistence, which
required restricted Indians to dispose of allotments on which it was not
practical for them to live. Pierce telegraphed to Roberts that this
statement was contradictory to Pierce's own earlier representations that
the UKB's ideas of their future as a sovereign tribe was very limited, when
he added, "Rev. Pickup is listening to me dictate this letter and he has
suggested that it may be treated as a direct communication from the meeting
in respect to the matters and things mentioned;" loosely translated, it
appears Pierce was telling Roberts, "There are certain Parties acting in
behalf of my Client, the UKB, over whom I can presently exercise very
little fiduciary control." It is not entirely improbable that Chief Pickup
had decided to keep a closer eye on Mr. Pierce and Pierce's representations
regarding the UKB. The perceived plan of the Agency and the Cherokee Nation
attorneys, Principal Chief and his Executive Committee to control the
Cherokee fullbloods by creating a restricted role for the UKB was going to
fail, if the Rev. Jim Pickup and the UKB could help it.(Recall the
Memorandum of Discussion in Office of Mr. Earl Boyd Pierce, 10 February
1948, by Superintendent of Five Civilized Tribes Agency W. O. Roberts, in
Fort Worth NARA)
In 1949, the Cherokee Nation or Tribe Executive Committee selected W.
W. Keeler as Vice-Chair., and appointed Chief Pickup to be
interpreter.(Leeds 1992: 38) Milam died in 1949. The usual procedure for
selection of a new Cherokee Nation Principal Chief was that the
Superintendent would send a short list of his candidates to the Secretary,
who would forward his own pick to the President, but the Executive
Committee unanimously supported Keeler, the Phillips Oil Company
executive.(Letters, 17 and 20 June 1949, Superintendent W. O. Roberts to
Commissioner William Zimmerman, Jr.; Leeds 1992: 39)

UKB LAND ACQUISITION RIGHTS, OIWA AND THE ACT OF AUGUST 10, 1946

CNO has argued that because CNO has managed to acquire a land base,
the UKB cannot be sovereign because the Band lacks a Federal trust land
base. However, the UKB's inability to acquire a trust land base is no fault
of the UKB. Among the most important provisions of the 1950 Charter was
under Section 7, "Corporate Rights and Property," dealing with unallotted
lands:
The Band onwership of unallotted lands, whether or not occupied by
particular individuals, is hereby expressly recognized.
In approving this language, the Secretary of the Interior assigned the
remaining unallotted lands of the Cherokee Nation to the UKB, even though
this move appears to contradict the 25 October 1937 Solicitor's Opinion in
that regard, because the UKB omitted freemen and intermarried whites.(See
also Leeds 1992: 44) Even after Termination, the BIA, CNO and the Band's
own legal counsel, Earl Boyd Pierce, prevented the Band from acquiring
trust land, despite the Band's tireless efforts between 1946 and the
present. According to the findings of the American Indian Policy Review
Commission:
Even though the . . . (OIWA) specifically authorized the Secretary of
the Interior to buy lands through the revolving loan funds in IRA for
the Oklahoma tribes and put them in trust, it does not appear that 1
acre of nontrust lands have been put in tribal ownership under the
provisions of the Act. No moneys have been appropriated to the Bureau
of Indian Affairs Anadarko Area Office for fulfillment of that
provision of OIWA. . . .
Add to these problems the assertions of tribal leaders that
service population figures are too low, and you see that the tribes
have very little chance to become self-sufficient. Moreover, the
effect of some State laws is to force still more land into fee status
through partition actions as a result of fractionated heirship.
Likewise, Indians in Oklahoma are subjected to State probate laws
where non-Indians are not, there being no rational basis for this
discriminatory treatment. So numerous are the special laws granting
the State of Oklahoma special rights over Indians that Felix Cohen
devoted a separate chapter to it in his Handbook of Federal Indian
Law.
Finally, few of the tribes have land acquisition and
consolidation programs because they simply do not have the resources.
Also, the Secretary of the Interior has the authority to place land in
trust when it is acquired by the tribes, will be place land in trust
when it is acquired by the tribes, yet the Department has established
a policy that land, generally, will be placed in trust only with
specific congressional approval.(AIPRC, Final Report, pp. 524-525)
Therefore, the refusal of the BIA to place land in trust for the UKB, or to
allow the UKB to use revolving loan funds as stipulated in the OIWA to
acquire a tribal trust land base, was simply consistent with the general
policy.
While most of the tribal lands of Cherokee Nation were allotted under
agreements with the U. S. (namely the Act of March 1, 1901, ch. 675, 31
Stat. 848, as supplemented by Act of July 1, 1902, ch. 1375, 32 Stat. 716),
most of the allotments remained inalienable and nontaxable for prescribed
periods (Act of March 1, 1901, ch. 675, para. 11, 31 Stat. 848, 850, and
Act of July 1, 1902, ch. 1375, Secs. 13-15, 32 Stat. 716, 717). Thereafter,
Congress removed all restrictions on allotments of members of the Five
Tribes possessing under 1/2 Indian blood (Act of May 27, 1908, ch. 199,
Secs. 1, 4, 9, 35 Stat. 312, 323, 315; Act of May 10, 1928, ch. 517, Secs.
1, 2, 4, 45 Stat. 495, 496, amended by Act of May 24, 1928, ch. 733, 45
Stat. 733; Act of Aug. 4, 1947, ch. 458, Secs. 1, 6, 61 Stat. 731, 733; Act
of Aug. 11, 1955, ch. 786, Secs. 1, 5, 69 Stat. 666, 669. Indians could
obtain trust allotments under other legislation (Act of Aug. 4, 1947, ch.
458, Sec. 6 (d), 61 Stat. 731, 733; 25 U. S. C. Secs. 334, 336, 412a, 501)
The restriction period on allotments of descendants of the Five Tribes of
1/2 blood or more was extended (Act of May 10, 1928, ch. 517, Secs. 1, 2,
4, 45 Stat. 495, 496, amended by Act of May 24, 1928, ch. 733, 45 Stat.
733; Act of Aug. 4, 1947, ch. 458, Secs. 1, 6, 61 Stat. 731, 733; Act of
Aug. 11, 1955, ch. 786, Secs. 1, 5, 69 Stat. 666, 668. Later, this
narrative discusses the reasons the UKB was never able to avail itself of
its rights to land acquistion.
Between 1936 and 1940 the U. S. acquired lands for the Cherokee Tribe,
to be held in trust for a tribe that organized under OIWA and IRA. These
lands were in Kenwood (Delaware County), Candy Mink (Adair County), Rocky
Ford (Cherokee County), and Grand River (Yonkers, in Mayes County). Chief
Pickup (on 1 May 1949) and Sam Hider were Cherokee Trustees for the
land.[Letter, C. C. Marrs for Paul Fickinger, Muskogee Area Office, BIA, 18
September 1957, "Report on Status of the Cherokee Rehabilitation
Projects," to Assistant Commissioner of Indian Affairs (Resources); Leeds
1992: 54] This matter became important during and after the Termination
Era.
On 14 March 1949, Acting Commissioner Zimmerman wrote to Senator
Robert S. Kerr, informing him that Eli Pumpkin and Rufus Prichett of the
Seven Clans Society wished to meet with the Senator to discuss "problems of
organization and economic rehabilitation":
1. By the Act of August 10, 1946 (60 Stat. 976), the Keetoowah
Indians, of which the Seven Clans Society is a faction, are recognized
as a band for the purpose of organizing under the Oklahoma Indian
Welfare Act.
We have had some difficulty in determining the membership of the
Keetoowah Indians but I believe that problem is now solved and we can
proceed with forming an organization.
2. A number of Indians holding allotments of land in trust have
expressed a willingness to transfer their land to the organization
proposed in No. 1, to be held in trust by the United States for the
organization. This step would preserve the inalienability and tax
exemption of the lands.
3. If the individual allottees transfer their lands in the manner
suggested, the United States probably should cooperate by providing
funds for land purchase in order to add to the land base. Obviously
this would need to be a limited program and should be primarily
designed to help the Indians of a greater degree of Indian blood who
for some years to come will need special help and protection.
Under present law, trust restrictions must be removed from the
lands held by the original allottees upon the death of the allottees.
The lands are then merchantable and they are passing out of Indian
ownership too rapidly.
This critical memorandum was entirely consistent with Commissioner
Zimmerman's subsequent Letter of 17 March 1949, to Eli Pumpkin of the Seven
Clans Society, regarding the UKB's right to acquire a federal trust land
base, or Reservation, within the boundaries of the Old Cherokee Nation, in
Oklahoma's northeast counties.(*: IV; File # 6241)
Acting Commissioner Zimmerman reviewed the problem of Seven Clans
Society's operations in a letter to Eli Pumpkin and Rufus Pritchett. He
referred to their efforts to achieve separate recognition from Cherokee
Nation and the UKB, and to obtain a separate tribal land base. He pointed
out that the problem of determining the roll of the UKB had been resolved,
and advised that the Seven Clans faction was part of the UKB. He approved
the Band's desire to have a trust land base, composed initially of trust
lands belonging to members who wished to transfer their interests to the
Tribe. He added that if the members followed through on their intentions,
that the United States "probably should cooperate by providing funds for
land purchase to add to the land base, . . . under federal supervision and
protection." Commissioner Zimmerman attempted to resolve the Seven Clans
Society's questions about land acquisition and to persuade the Seven Clans
Society to rejoin the UKB, in order to be able to form a UKB land base.
These remarks clarify the Department's decision on the question, following
the passage of the Keetoowah Act:
There are two methods by which land still held in trust might be
kept in Indian ownership. The first method would be to obtain some
modification of the present law (Act of August 4, 1947, 61 Stat. 731)
which requires that restrictions be removed from allotments upon the
death of the original allottee. This office is studying that
particular law and we hope to propose amendments in the present
session of Congress.
The second method would be to form an organization of the
Keetoowah Indians, or possibly other cooperative groups. As provided
in the Oklahoma Indian Welfare Act, allottees who join such
organizations might then transfer their lands to the United States to
be held in trust for the organizations previously formed.
With respect to this second method, we are writing to
Superintendent Roberts indicating that organization of the Keetoowah
Indians can probably proceed on the basis of the roll of membership
made up in 1939. It is my understanding that the members of the Seven
Clans Society, of which you are the leader, placed their names on that
roll, along with other Keetoowah Indians to form the United
Keetoowahs. If this is not correct and if the Seven Clans Society are
not now included among the United Keetoowahs I urge you to consider
taking this step as the best immediate way of completing an
organization.
This document leaves no doubt of the Department's and Congress's
position on this matter. Still, on 29 June 1949, Houston B. Teehee, a
Cherokee attorney in Tahlequah representing the Seven Clans Society, wrote
to Zimmerman requesting that the Assistant Commissioner "advise if . . .
rules and regulations in this premise permit separate independent
organizations within the same tribe of Indians." As the reorganization
process continued for the UKB, Teehee pushed for a response from the
Commissioner (see *: IV; Letter, 11 August 1949, Houston B. Teehee to
Acting Commissioner of Indian Affairs William Zimmerman, Jr.), but made
little progress. The answer, upon acknowledgment of the Seven Clans Society
as a part of the UKB, was that separate reorganization was impossible
without congressional authorization. In a letter dated 20 September 1948,
Assistant Commissioner Provinse advised Teehee that under Section 3 of
OIWA, and under Section 16 of IRA, "the intention seems clear that a tribe
or band must organize as a unit, and the Solicitor has consistently so
held." The exception which proved the rule was the United Keetoowah Band of
Cherokee Indians in Oklahoma:
A slightly different situation exists with respect to the
Cherokee Indians since Congress, in the Act of August 10, 1946 (60
Stat. 976), provided that the Keetoowah Indians of the Cherokee Nation
of Oklahoma shall be recognized as a band of Indians within the
meaning of Section 3 of the Oklahoma Indian Welfare Act. This
provision permits the Keetoowah Indians to organize apart from the
Cherokee Nation as a separate band.
The UKB, as a matter of law, was no longer a division of the Cherokee
Nation, but a separate, autonomous recognized Band of the Cherokee Tribe.
Seven Clans Society was a faction or splinter group of the UKB, since most,
if not all, members of the Seven Clans Society had enrolled voluntarily
with the UKB.
Even after the UKB had completed reorganization, the Seven Clans
Society and Four Mothers Nation pursued separation. Roberts continued to
file letters with the Commissioner about the continuing divisions in the
UKB.(*: IV; see File # 15179-50 and # 13675-50) The Seven Clans Society
refused to join the UKB in reorganization, as did the "Nighthawk"
Keetoowahs. Roberts asked the Commissioner to give D'Arcy McNickle the job
of devising an approach for dealing with requests for organization from
such groups (6 November 1950). On 7 December 1949, and again on 14 December
1950, Roberts advised the Commissioner further about the Seven Clans issue,
enclosing a copy of the Seven Clans' proposed Constitution and By-laws from
Eli Pumpkin, their acting Chief. Roberts said on 7 December 1949:
It is noteworthy that this group adheres to the old pre-Christian view
in religious matters and cannot therefore affiliate with the Keetoowah
group because the Keetoowah Band adheres to Christian religious
principles.(*: IV; File # 22971)
McNickle responded that, under the Solicitor's Memorandum of 27 July 1937,
Section 4 of the OIWA requires that membership in land management
cooperative associations, of the type the Seven Clans Society wanted to
form, must allow all Indians residing in the district to participate.
McNickle suggested that the group incorporate under Oklahoma law, since
there was no other way to help them.(*: IV; Letter, McNickle to Roberts, 16
August 1951)

APPROVAL OF THE UKB CHARTER, CONSTITUTION AND BY-LAWS, 9 MAY - 3 OCTOBER
1950

The BIA and the Tribe resolved the UKB's preliminary roll problems in
March 1949. Commissioner Zimmerman had advised Superintendent W. O. Roberts
of his conclusion that the UKB had formed an acceptably inclusive roll in
June 1939.(Letter, 23 March 1949, Acting Commissioner Zimmerman to Area
Director W. O. Roberts; *: IV) He added that "the constitution tentatively
adopted in June, 1939 should be revised as to its membership provision . .
to show that the basis of membership is a roll, the existence of which is
indicated by date a place of deposit and other identifying features."
Zimmerman also suggested that "Additional provisions should be made for
future membership, and for adoptions, specifying the conditions to govern,
such as degree of Indian blood, descent, residence, or whatever is deemed
proper. The right of membership should operate automatically within the
limits set forth in the constitution rather than being left to the
individual."
The constitution should also cite the Act of August 10, 1946, as
recognizing the Keetoowah Indians as a band eligible to organize in
accordance with the Oklahoma Indian Welfare Act of June 26, 1936 (49
Stat. 1967).(Letter, 23 March 1949, Acting Commissioner Zimmerman to
Area Director W. O. Roberts; *: IV)
The certification of the United Keetoowah Band's roll followed, in the 19
April 1949, resolution, along with an amendment to the Constitution and By-
laws of 9 June 1939, respecting membership, reducing the blood quantum
requirement to 1/4 blood.
Superintendent W. O. Roberts transmitted these 19 April 1949
resolutions under cover of a Letter to Acting Commissioner Zimmerman 28
June 1949, adding that he believed the UKB had met the Commissioner's
demands, and that the full roster of both voting and non-voting members of
the UKB, revised according to Zimmerman's instructions to include 1/4
bloods, with a card file covering the membership, was in the Five Tribes
Agency Office. Roberts concluded:
We would refer you to Office letter dated March 28, 1949 concerning
the list of members who can rightfully claim to belong to the
Keetoowah Indian entity. We conclude that the 1939 list complies with
this requirement.
John H. Provinse, Assistant Commissioner, responded to Roberts's Letter of
28 June 1949, on 29 July 1949 (*: IV), reflecting the Office's concern that
the UKB membership roll was supposed to form the basis of organization, but
that the roster did not distinguish between "voting and non-voting
members." Provinse supposed that non-voting members might be intermarried
non-Indians, but said, "If this interpretation is correct, it is probably
a mistake to refer to such persons as members, even though qualified as
non-voting. Membership ought to convey all rights, including the right to
vote." However, other tribes do create classes of membership, and such
distinctions did emerge within the UKB organization in time. Provinse also
observed that the UKB Constitution and By-laws of 1939 had no legal effect
at Federal-Indian law, because the authority for forming the UKB
organization did not exist before the Act of August 10, 1946. Provinse
directed that the UKB be informed of the need to make a revised
Constitution and By-laws to meet the Secretary's guidelines. The Band had
to incorporate by reference the Tribe's authority to organize under the
1946 Act, and include suggestions in the Department's Letter of 23 March
1949 (*: IV).
Within the year following the creation of the Cherokee Nation's
Executive Committee, W. W. Keeler was still getting oriented on Cherokee
history and policy. Earl Boyd Pierce, the attorney now for the Cherokee
Nation as well as the UKB, obliged Keeler by becoming his mentor, supplying
him with Starr's classic History of the Cherokee Indians and Genealogy. The
purported purpose of Pierce's letter was to discuss the prospect of forming
a weaving industry for the tribe. However, the question of the leadership
and organization of the Keetoowah Indians was the subject of much of the
letter:
In regard to the full-bloods, it is true there are several
branches of the Keetoowahs organization. There is so much history
connected with this matter that it can not safely be covered in a
letter. Suffice to say, that the Keetoowahs are the real full-blood
Cherokee Indians, and if it could be possible to bring all of their
leaders together and discuss this projected picture face to face, I
believe, this would be a long step in bringing those leaders to the
point where they could work together in harmony. Personally, it should
be immaterial to us who should head up the Keetoowah organization, for
after all, as stated, this is, and of right, should be a full blood
organization.(Letter, 1 March 1949, Earl Boyd Pierce to W. W. Keeler;
emphasis added)
Pierce himself was a full member with voting rights. However, his main
point seemed to be that the UKB reorganization, if it took place, probably
would be no business of Keeler's, as Principal Chief of Cherokee Nation,
since the UKB would be a separately acknowledged tribe. Pierce continued:
The factions in their groups are led by wise and determined men.
Washington is advised of the situation and has been reluctant to
officially recognize either group until their principal differences
are reconciled.
This statement was extremely misleading, in that "Washington," namely the
Commissioner and Secretary, already had learned from the Organization Field
Agents, the Superintendent, and various correspondents that the barriers to
reorganization of the UKB had been resolved, and that the Keetoowah
Society, Inc. (except for the meager following of Levi Gritts, the small
separatist factions and the Stokes Smith Nighthawks) had merged to compose
the UKB. Pierce admitted:
Congress, a few years back, made provision for official recognition of
the Keetoowah Cherokee Indians in Oklahoma. Congress did not
specifically mention which group it desired to recognize. The group
known as the Keetoowah Society, Inc., I think it properly can be said,
was instrumental in securing, with the help and knowledge of the
Indian Bureau, the passage of this legislation. It is presumed,
however, that this activity was intended to benefit all Keetoowah
Indians regardless of their membership in the Keetoowah Society, Inc.
In most respects, these statements were true, except that correspondence in
Pierce's own possession, and the history of the UKB from 1937 forward,
proves that Pierce should have known the Keetoowah Society, Inc., had
little to do with the passage of the 1946 Act, or in the reorganization
effort from 1946 to 1950. Pierce continued:
Now, there is another organization headed by Rev. Jim Pickup
calling itself the United Keetoowah Band of Cherokee Indians in
Oklahoma, and there is serious controversy concerning its original
establishment, but knowing its leaders as I think I do, I am confident
that concessions can and will be made, if such be necessary for the
ultimate benefit of all full-blooded Cherokee people.(Letter, 1 March
1949, Earl Boyd Pierce to W. W. Keeler)
Pierce was working directly with Chief Jim Pickup and certainly knew that
the UKB was not just "another organization," but was the representative
government of the united Keetoowah factions to which Pierce referred.
Pierce was working directly with the UKB and Pickup in particular to
perfect the organization, which happened in 1950. Pierce's mind was on
another point; namely, the problem of persuading the Keetoowahs generally
to bend to the will and leadership of the Principal Chief of Cherokee
Nation in all things, for matters of administrative convenience, as well
for the purpose of preventing any inter-tribal skirmishing in the process
of resolving outstanding Cherokee claims. In this scheme, Levi Gritts was
the loose canon, regardless what happened to the main body of the Keetoowah
Society, Inc.; and if cultivating his friendship would help keep Pickup in
line, so much the better:
I mean to say, that should it develop that your plans for the weaving
project depend in the future upon the conciliation of these groups
into one officially recognized Keetoowah organization, that for the
sake of the success of the project, the leaders of the latter group
would be willing to compose their differences with the first and other
groups and all stand together. And I also believe that you are in a
position to approach Mr. Gritts and his associates upon the same
proposition, and when he has had time to consult his council, I
believe, that he will be agreeable to meeting with any other group of
sincere minded Cherokees if the results could be expected to be of
ultimate benefit to all the Cherokees. You may explore this matter
further by [contacting] Mr. Gritts and getting his views on the
matter.(Letter, 1 March 1949, Earl Boyd Pierce to W. W. Keeler)
Pierce knew that it was important to make peace with Levi Gritts, if
possible. President Gabriel Tarepen and Acting Secretary Levi Gritts of the
Keetoowah Society, Inc., had led their remaining Keetoowah Society, Inc.,
followers in a renewed effort to obtain separate legislation to acknowledge
their own organization after Levi Gritts lost the 9 June 1939 UKB Chief's
election to Rev. John Hitcher. [Letter, 29 August 1944, Commissioner of
Indian Affairs William Zimmerman, Jr. to Gabriel Tarepen, in Central
Classified Files of the BIA, Department of Interior. Box 463. Accessions
56A-588. Records for 1948-1952. Five Tribes. 010. Legislation (011.-015.)
File # 29941-44] Gritts and the Keetoowah Society, Inc., had formally
battled the seating of the Cherokee Nation Executive Committee. The
Keetoowah Society, Inc.'s expulsion of Principal Chief Milam from their
fellowship in 1948 appeared to signify nothing. Pierce was working pro-bono
for the UKB, directly with Chief Pickup. The Keetoowah Society, Inc.,
essentially dissolved by 1950 as an independent entity. However, years
later, Gritts's estate sued for payment of his expenses incurred in
advocacy for Cherokee claims.
One rather peculiar wrinkle in UKB's role in the administration of CNO
property occurred on 4 May 1949, when Chief Jim Pickup of the UKB became
Trustee for the Cherokee Tribe of Oklahoma.(Letter, 4 May 1949, Five
Civilized Tribes Superintendent W. O. Roberts to Rev. Jim Pickup,
transmitting copy of Chief Pickup's appointment as Trustee for the Cherokee
Tribe of Oklahoma) The letter covered a formal document that read:
APPOINTMENT AS TRIBAL TRUSTEE
I hereby appoint Jim Pickup as Trustee for the Cherokee Tribe of
Oklahoma for a period beginning May 1, 1949 and ending May 1, 1951.
The Department of the Interior understood clearly the role the UKB was
supposed to play in the administration of the property of CNO.
At a regular UKB meeting at Lyons Community House, seven miles
southwest of Stillwell, Adair County, on 1 August 1949, with 319 UKB
members present, the Council adopted UKB Resolution 1, authorizing and
directing the Constitutional Committee of the UKB (consisting of Daniel
Hummingbird, Ben Birdchopper, Jim Pickup, J. B. Sixkiller, Jack Wolfe and
John Ketcher) to meet at Muskogee office of Earl Boyd Pierce on August 10,
1949. The Constitution Committee had the charge of redrafting the proposed
Constitution and By-laws for final approval, and to continue from that
point to act as a provisional council, and to appoint other temporary
officers.(*: IV; UKB Resolution 1, 1 August 1949).
On 10 August 1949, the UKB Provisional Council transmitted a proposed
Constitution and By-laws to Superintendent Roberts in compliance with the
Department's requests, amending the organic documents, and approving the
"current, active roll of the membership" of the Band. For the purposes of
initial organization, the Provisional Council had decided, at the end, to
restrict membership to persons of 1/2 or more Cherokee Indian blood, based
on data on the Cherokee Dawes Commission Roll, who resided in Oklahoma; and
on August 12, 1949, Roberts transmitted the same to the Commissioner (*:
IV; File # 17741, including the UKB and Roberts Correspondence regarding
Proposed Constitution and By-laws of the UKB). Later, the Band expanded
enrollment criteria to include persons of 1/4 or more Cherokee blood, and
to adopt Cherokees who were neither on the Cherokee Dawes Commission Roll
nor descendants of such persons.
By late August, the UKB had learned that W. O. Roberts might be
removed as Superintendent of Five Tribes Agency at Muskogee, and Chief
Pickup protested this move (in a Letter, 24 August 1949, File # 43292-46-
068) to Acting Commissioner Zimmerman:
He is one of the best men we had in fifty years, that Superintenendent
[sic] Office.
Perhaps, whatever the past difficulties and arguments, the UKB was happy
with Roberts and fearful of the prospect of having to "break in" a
replacement: Better to suffer the ills we have, "than fly to others that we
know not of." However, it seems more likely the UKB thought that if they
kept Roberts in place, while continuing to pressure him, they would have a
willing ally in their reorganization efforts. Certainly, the fact that
Roberts appeared to have career problems did not cause the UKB to change
their tactics. After the Commissioner had resolved the touchy issue of the
Seven Clan Society's competing claim to the right to land acquisition in
Oklahoma, the UKB still faced the matter of gaining approval for the UKB
Charter. Without an approved OIWA charter, the Tribe could not memorialize
their intent to exercise their retained sovereignty as a sovereign tribal
entity.
In a letter of 10 August 1949, the UKB Provisional Council transmitted
a proposed Constitution and By-laws (*: IV; File 17741). Assistant
Commissioner John Provinse responded to the latest proposed draft of the
Keetoowah Constitution, By-laws and Roll with specific recommendations for
further clarification or modification regarding membership, the council
membership and representation, vacancies, procedures for amending the
constitution.(*: IV; Letter, 9 September 1949, Assistant Commissioner John
H. Provinse to Superintendent W. O. Roberts, File # 17741-49)
Regarding proposed corrections of wording on these points, Provinse
said, "the Constitution and By-laws will be retyped and submitted to the
Secretary for his approval and the calling of an election." The original
Membership roll was to be subject to the Council's amendment within five
years, and such amendments subject to secretarial approval. Thereafter, the
Council was to have full control over membership decisions. The language
describing the governing body was unclear, as to the issue of proportional
representation. The Department also felt that decisions as to whether the
basis of representation should be changed periodically should be in the
hands of the Council, not the Constitutional Committee. The draft provided
for 27 council members and four executive officers, without adequately
explaining whether the officers were to be elected at large. The language
addressing the filling of vacancies on the Council also was confusing and
inconsistent. The amendment and adoption clauses needed specific revisions
in order to draw them into conformity to the laws and regulations of the
Department of the Interior.(*: IV; Letter, September 9, 1949, Assistant
Commissioner John H. Provinse to Superintendent W. O. Roberts, File #
17741-49)
There also were problems with the By-laws. Rights of members to vote
and to serve on the Council required clarification as to whether a
candidate for office had to be a resident of a particular district, and not
just a registered voter there, to represent that district.(*: IV; Letter,
September 9, 1949, Assistant Commissioner John H. Provinse to
Superintendent W. O. Roberts, File # 17741-49)
The Charter had to answer the question which governmental powers the
Tribe possessed, for as Provinse observed:
You will note that the Constitution and By-laws of the United
Keetoowah Indians under consideration contain none of the usual powers
that an Indian tribe may exercise and neither does it contain any of
the grants of power contained in the Indian Reorganization Act. This
results from the wording of the Oklahoma Welfare Act, which provides
in Section 3 that any recognized tribe or band of Indians residing in
Oklahoma may adopt a constitution and by-laws. However, the proper
organic document in which an Oklahoma tribe must write down its
"rights or privileges secured to an organized tribe" is not a
constitution and by-laws, but a charter of incorporation that the
Secretary of Interior may issue. Following this language, it has been
customary to include in the charters issued to Oklahoma tribes all the
powers vested in Indian tribes by existing law and any additional
grants of power provided for in Section 16 of the Act of June 12,
1934. I therefore urge that the Keetoowah Indians take the additional
step of adopting a charter of incorporation in order to complete their
organization. I attach a charter issued to the Eastern Shawnee Tribe
of Indians, Oklahoma, which may be used as a model but modified as may
be necessary in order to meet the requirements of the Keetoowah group.
The Secretary of the Interior will submit the charter to the
adult members of the band for ratification upon receipt of a request
by the Constitutional Committee, or upon a petition signed by at least
one-third of the adult members of the United Keetoowah Band (*: IV;
Letter, September 9, 1949, Assistant Commissioner John H. Provinse to
Superintendent W. O. Roberts, File # 17741-49)
September 22, 1949, Roberts advised the Commissioner of his receipt of the
Constitution and By-laws for the UKB on September 12, 1949, adding that he
had sent the Tribe their copies immediately:
The officers, together with their Attorney, have examined the
requirements as set out in your letter of September 9, 1949, and have
replied thereto in a letter dated September 20, 1949, assessed to the
General Superintendent of the Five Tribes Agency and signed by the
Advisor-Attorney of the United Keetoowah, Mr. Earl Boyd Pierce. The
letter bears the approval of the Rev. James Pickup, President of the
Organization. The letter is forwarded to the Office for compliance
with the last paragraph thereof and for such other suggestions as the
Office may deem advisable.(*: IV; Letter, September 22, 1949,
Superintendent W. O. Roberts to Assistant Commissioner John H.
Provinse, File # 17741-49; also, Letter of 10 September 1949, Earl
Boyd Pierce, cosigned by Chief Jim Pickup, to Superintendent W. O.
Roberts)
Very few members of the Band lived either in Coo-Wees-Coo-Wee or Canadian
Districts of the old Cherokee Nation, and the Provisional Council had some
concern about gerrymandering. The UKB had decided to provide that the
Council would deal with proportional representation issues as needed.
However, D'Arcy McNickle, Director of the Tribal Relations Branch, re-
examined the proposed UKB Constitution and By-laws and attached
correspondence, and found several important issues remained unresolved.(*:
IV: Letter, 3 November 1949, McNickle to Roberts) McNickle required that a
support resolution certifying the membership list appear with the list, and
that the UKB address the problems of representation in the Council, and
election procedures, as the Department had suggested earlier. Pierce was to
prepare a draft Charter for the Secretary's approval, and forward this with
the completed Constitution and By-laws, so that the Secretary could call an
election.
The Minutes of the UKB for November 16, 1949, at the County Court
House at Tahlequah, reflect the Provisional Council's understanding of
their situation. The Council acknowledged that: "the 1946 law makes no
provision for organizing separate groups of Indians calling themselves
Keetoowahs, but authorizes 'the Keetoowah Indians of the Cherokee Nation of
Oklahoma' to organize under Section 3 of the Oklahoma Welfare Act." At the
same meeting, the Provisional Council adopted a compilation for a tentative
Charter, discussed plans for social and economic programs. Then Earl Boyd
Pierce, the Band's attorney, discussed progress toward the prosecution of
Cherokee Indian claims against the U. S., in which he represented the
interests of Cherokee Nation as well as the UKB.
By this time, Pierce was openly blurring the distinctions between
Cherokee Nation's rights and powers generally, and the UKB's governmental
rights. The UKB has reason to believe, based on copies of Pierce's
correspondence in the Fort Worth NARA collections and elsewhere, that Mr.
Pierce's conflict of interest, as the attorney for both Cherokee Nation and
the UKB, led Pierce to circulate the story that the UKB only was created to
be a loan agency for Keetoowahs. Pierce certainly knew better. When the UKB
tried to get a loan program started, Pierce did little to aid his clients
in getting the BIA's cooperation. Ben Birdchopper, of the UKB Council,
inquired of Pierce:
Here is concerning about the meeting we had last that we were to hear
of the result in 20 days. And another thing is that our chief held a
meeting in Kenwood Okla. week ago Sunday. His speech was about the
loan that the Cherokees was allowed, but I thought things like these
was supposed to be left up to our President. Since you are our atty,
Dont you think our President should be informed of these things first.
So I thought I would write and ask you about these things who is going
to handle these things and who has a right to. So please answer
soon.(Letter, 19 June 1950, Ben Birdchopper, Spavinaw, Oklahoma, to
Earl Boyd Pierce)
Pierce, as a matter of convenience, continued to duck the point that the
UKB now had an approved Charter and Constitution and By-laws, waiting only
for voter ratification. Upon approval of the OIWA/IRA election, the UKB
organization would be the only authorized Cherokee tribal entity organized
in Oklahoma to participate in Federal programs for OIWA/IRA tribes. In his
response, erce admitted that participation in any UKB loan program would be
open only to UKB members, and that Principal Chief W. W. Keeler would have
to create some other organization to serve the broader purposes of
Cherokees. Pierce opened with an attempt to advance Keeler as the sole
authority over Cherokees in Oklahoma:
You are advised that Chief W. W. Keeler has been appointed by
President Harry S. Truman as the Principal Chief of the Cherokee
Nation and as such he speaks officially for all Cherokees.
Of course, this statement technically was true as to the general class of
Dawes descendants, pending completion of the UKB organization process, but
was no longer true as to members of the UKB following the 3 October 1950
UKB election. Pierce continued:
As you are no doubt aware the Cherokee Nation is composed of
several different groups of Indians including the United Keetoowah
Band of Cherokees off which Rev. Jim Pickup is the President; the
Seven Clans Society, headed by Mr. Eli Pumpkin, the Night Hawks and
the Keetoowah Society, and Texas Cherokees.
In 1946, Congress enacted a law permitting the Keetoowah's to
organize under the Oklahoma Welfare Act, the Thomas Rogers Bill which
will enable your group to secure various types of loans and other help
where needed. I am in receipt of a letter this morning from Mr.
Roberts going forward with the election which your committee requested
in Tahlequah. You will be hearing more about this in a few days. After
this election has been held and all the documents have been approved
by the members of the United Keetoowah Group, then your organization
will be permitted to establish itself for the purpose of approving
loans to its own members when funds are made available for this
purpose. It is hoped that part of the money included in the Stigler
Bill now before Congress will be made available for loans to members
of your group.
There are many, many Cherokees who do not belong to your
organization and probably never will belong, and it is believed that
Chief Keeler will evolve a plan or organization through loans upon a
long-time basis from the government. However, neither the money nor
the procedure has been worked out and it will take time to get under
way. On the other hand your organization has traveled far in getting
itself ready to serve its members and it is my opinion that your group
will be greatly benefitted through the organization in the securing of
speedy approval of various and sundry types of loans, and has been
discussed in your many meetings over the last several months.(Emphasis
added. See Letter, 20 June 1950, Earl Boyd Pierce to Ben Birdchopper;
see also Letter, 15 May 1963, Earl Boyd Pierce to Principal Chief W.
W. Keeler)
Pierce led some to believe that the UKB was subordinate to Cherokee Nation,
and its appointed Principal Chief, even after 3 October 1950. Herein lies
the source of the great myth of the 1980s, that the UKB was only a Cherokee
loan agency, while doing little if anything even to give that lie the
appearance of truth by assuring that the UKB obtained any loans. Of course,
since the UKB intended to obtain the loans for the purpose of acquiring
land to put into trust for a reservation, neither Pierce, Keeler, nor the
Department of the Interior ever intended that the UKB would obtain land or
loans. Pierce also had discussed the matter of Cherokee Nation's limited
remaining sovereignty, in the course of dicsussions with Superintendent W.
O. Roberts concerning the creation of the Executive Committee.(Letter, 17
October 1949, Five Civilized Tribes Area Director W. O. Roberts to
Principal Chief W. W. Keeler, copied to the Five Civilized Tribes) Roberts
assured Pierce that in view of the Act of April 26, 1906 (34 Stat. 137),
"which dissolved the Cherokee Tribal Government" except for the President's
appointment of Principal Chiefs for the "limited purpose" of dealing with
allotments, he knew "of no reason the Principal Chief should not appoint an
Executive Committee or Advisory Board to assist him" in those duties.
It was pure fantasy to suggest that the Executive Committee, or the
Elected Community Representatives, ever constituted a properly organized,
representative or democratic Cherokee government. It is even more fantastic
to suggest that Chief W. W. Keeler ever had real authority over the UKB.
Until 3 October 1950, the President could have appointed Keeler as an
adviser to the Secretary regarding the UKB. The President even could have
delegated some approval authority to Keeler regarding UKB actions, making
Keeler the Secretary's agent for these purposes. However, minutes of the
Band as well as Keeler's own Executive Committee reveal the Executive
branch never delegated any managerial or approval authority to any
Principal Chief of Cherokee Nation or Tribe with respect to the affairs of
the UKB. After 3 October 1960, any such authority would have expired, under
the terms of the UKB organic documents and the Department's own final
determinations regarding the expiration of the Secretary's own approval
authority regarding UKB affairs.(See Letter, 15 May 1963, Earl Boyd Pierce,
"General Counsel for Cherokee Nation," to Principal Chief W. W. Keeler)
In communications with persons who had no connection with Cherokee
Nation, Pierce disclosed what he believed to be the true governmental
status of Cherokee Nation after 1906. For example, in 1967, Pierce wrote to
a scholar at Colorado State College, and stated succinctly his real views:
Principal Chief W. W. Keeler of the Cherokee Nation recently
referred to me your letter relating to our Constitution, with the
suggestion that I cooperate with you in your interesting venture.
You will recall that Congress, commencing in 1893 and ending
April 26, 1906, enacted a series of Statutes which directly affected
our Constitution and laws, as follows: 27 Stat. 612; 28 Stat. 910; 29
Stat. 321; 30 Stat. 62; 30 Stat. 495; 32 Stat. 716; 33 Stat. 189; 34
Stat. 137; 35 Stat. 312.
As you know, all citizens of the political Government of the
Cherokee Nation at Statehood in 1907 became full-fledged citizens of
the new State of Oklahoma, and like other citizens of the State are
governed by the State Constitution and State laws. The Constitution
and laws of the Cherokee Nation were published in bound volumes and
may be found in many of the good libraries of the United States.
Congress has the acknowledged power to abolish the Government of
any American Indian Tribe, but it's [sic] power to abolish the Tribe
itself has long been doubted. See Section 28 of the Act of April 26,
1906, 34 Stat. 137. In 1948, the Cherokees created an Executive
Committee with authority to advise the Principal Chief on all Cherokee
matters. The sole source of legal power is vested in the Principal
Chief under Federal law, and for over fifty years Congress has shown
no disposition to change this situation, even if it was desired.(See
Letter, 7 April 1967, Earl Boyd Pierce, "General Counsel, Cherokee
Nation," to Dr. George E. Fay, Assistant Professor, Department of
Anthropology, Colorado State College, Greeley, Colorado; also, Letter,
2 October 1967 to James E. Bishop, Vice President and Trust Officer,
First National Bank, Tulsa)
In a similar letter to James E. Bishop, the Tulsa Banker, Pierce observed
that the CNO was a "quasi-sovereign government entity limited to the
exercise of proprietary sovereignty," adding that "Practically speaking,
its governmental sovereignty was taken away by Congress at the turn of the
century."
The contrast between the UKB as a federally-recognized tribe,
particularly after reorganization, and the Cherokee Nation, could hardly be
plainer, when one considers that Section 58, Agreement with the Cherokee
Nation, April 1, 1900 said, "The Tribal Government of the Cherokee Nation
shall not continue longer than March 4, 1906," and only the Section 28
savings clause of the 1906 Act preserved the shell. Decades later, the 1975
CNO Constitution, and a 1976 Federal District Court decision regarding the
irregularities in the 1976 CNO election, made it apparent that though a
Cherokee government survived through the 1906 Act, the 1839 Cherokee Nation
Constitution, under which the UKB was subordinate, no longer existed. The
1975 CNO Constitution was not an OIWA/IRA Constitution, and could by no
means purport to supersede the organizational documents of the UKB of
1950.(Cherokee Nation of Oklahoma Constitution, CNCA, according to Article
XVI, expressly supersedes the old Constitution of Cherokee Nation, enacted
6 September 1839)
In the final version of the UKB Charter, the Band set out its
authority to defend rights to treaties in which the Keetoowah Band had an
interest. The Department determined in 1950 that "the only treaties in
which the Keetoowah Band would have an interest would be treaties made
between the United States and the Cherokee Nation"(*: IV; Letter, 8 May
1950, Assistant Secretary - Interior William E. Warne to Superintendent W.
O. Roberts, File # 43292). Rennard Strickland, testifying at the Horseshoe
Bend trial in 1988, testified of the UKB that "They would possess those
same rights of treaty that came to them from having been Cherokee in the
same way that the Oglalla Sioux who post date the Sioux treaties possess."
The source of sovereignty of the UKB stems, not from the OIWA and IRA, but
from their Federal acknowledgment as a tribal entity possessing inherent
powers, who participated in treaty-making, as in the case of the 1866
treaty and 1898 agreement. Recall that in his 8 May 1990 Letter to the
Secretary, Ross O. Swimmer claimed the Band has no treaty rights.
In a Letter of 28 November 1949, Area Director W. O. Roberts
transmitted the Constitution and By-laws and tentative Charter of the UKB
to D'Arcy McNickle, Tribal Relations Branch, for McNickle's approval and
the signature of the Secretary. Roberts requested a file copy of all
pertinent documents for the Five Tribes Agency Office at Muskogee. This was
the last step necessary before calling the election. The Secretary's staff
amended the proposed Charter, which set out the essential governmental
powers. The approved Charter stipulated these governmental purposes:
(a) To define and safeguard the rights and powers of the United
Keetoowah Band of Cherokee Indians in Oklahoma and its members;
(b) To advance the standard of living of the band through the
development of resources, the acquisition of land, the preservation of
existing landholdings, the better utilization of land and the
development of a credit program for the land;
(c) To promote in any other way the general welfare of the Indians of
the United Keetoowah Band of Cherokee Indians in Oklahoma.
Corporate powers include: "succession by its corporate name perpetually;"
"To sue and be sued . . . .;" "To appoint such subordinate officers and
agents as the business of the band may require, and to allow them suitable
compensation;" "To enter into any obligations or contracts essential to the
transaction of its ordinary affairs or for the corporate purposes above set
forth;" "To negotiate . . . and advise" with all other governments and
advise or consult with the Department of Interior on all activities of the
Department "that may affect the United Keetoowah Band of Cherokee Indians
in Oklahoma;" "To employ counsel;" "To prevent any disposition, lease or
encumbrance of land belonging to the band, interest in land, or other band
assets;" "To advise the Secretary of the Interior with regard to
appropriation estimates or federal projects for the benefit of the band
prior to the submission of such estimates to the Bureau of the Budget and
to Congress;" "To make assignments of land belonging to the band to members
of the band, and to regulate the use and disposition of such assignments;"
"To regulate the manner of holding band elections;" "To regulate the
procedure of the officers and membership and all other band committees and
officers:" "To protect and preserve the property, natural resources crafts
and traditions of the United Keetoowah Band of Cherokee Indians in
Oklahoma;" "To impose penalties on members of the United Keetoowah Band of
Cherokee Indians in Oklahoma for violation of the corporate by-laws or
ordinances, not exceeding in any case $100 for any one offense, or in the
alternative, expulsion from the band or suspension of voting rights
therein;" "To purchase, take by gift, bequest or otherwise own, hold,
manage, operate, and dispose of property of every description, real or
personal;" "To issue bonds or other interests in corporate property in
exchange for restricted Indian lands;" "To protect all rights guaranteed to
the band by treaty;" "To delegate to subordinate bodies, committees, or
officers, or to any cooperative association which is open to all members of
the band, any of the foregoing powers, reserving the right to review any
actions taken by virtue of such delegated powers;" "To exercise such
further powers as may in the future be delegated to the band by the
Secretary of the Interior or by any duly authorized officer or agency of
government." The limitations on corporate powers dealt with limitations on
disposal of tribal assets, including tribal trust lands in particular. If
the United Keetoowah Band of Cherokee Indians in Oklahoma were not a
distinct, autonomous federally acknowledged, why would the Secretary have
approved a charter containing such powers? Considering the presently
controverted status of the Tribe's property rights, it is most important to
note the stipulation in the Charter is entirely consistent with the
Department's decision on the matter (see above):
The band ownership of unallotted lands, whether or not occupied by
particular individuals, is hereby expressly recognized. The
individually owned property of members of the band shall not be
subject to any corporate debts or liabilities, without such owners'
consent.
Any secretarial supervisory power was to end within ten years, as
subsequent decisional language stipulated. The Band retained all rights and
powers not expressly stipulated to in the Charter, and could exercise these
authorities "through the adoption of appropriate additions and amendments"
to the constitution, by-laws or charter. The Charter "shall not be revoked
or surrendered except by an Act of Congress, but amendments may be proposed
by a majority vote of the Council or by a petition. . . ."
The Department responded quickly to the proposed Constitution and By-
laws of the UKB. In a follow-up memo to Supt. W. O. Roberts, McNickle
referred to the 9 September 1949, Letter, indicating the need for some
additional clarifications before approval [Letter, 3 November 1949,
Assistant Commissioner D'Arcy McNickle to Superintendent W. O. Roberts]
McNickle requested that Earl Boyd Pierce be directed to submit the draft of
a Charter for immediate resubmission. Meanwhile, between October 10, 1949,
and January 1950, Tribal Relations Officer Theodore Haas, Land Claims
Officer W. B. Benge, and Mr. Rudolph of Forestry Division commented on
D'Arcy McNickle's concerns about membership requirements of the UKB, and
the disposition of tribal property. W. B. Benge was concerned that
although, "in the constitutions of other organized groups, the actions of
the tribal governing bodies regarding membership are subject to review or
approval," this general rule would not apply in the UKB's case. The Band's
future regulations would be immune to secretarial oversight. Also, Charles
B. Emery, Chief, Branch of Budget and Finance, commented on the Charter and
made additional recommendations for making the Charter more flexible.
[Letter, 20 January 1950, Charles B. Emery, Chief, Branch of Budget and
Finance to Erma Hicks, Tribal Relations; *: IV] On 10 February 1950,
Commissioner of Indian Affairs John R. Nichols surnamed approval of the
proposed Charter of the UKB, subject to ratification by the band as
provided in the proposed Charter. Delays continued in processing the
organization after resubmission November 28, 1949, so that March 5, 1950,
Superintendent Roberts sent another progress inquiry to the Commissioner.
At long last, May 8, 1950, on the recommendation of Commissioner
Dillon S. Meyer, Assistant Secretary of the Interior William E. Warne
approved submission of the Charter, Constitution and By-laws, for the UKB's
ratification. Commissioner of Indian Affairs Dillon S. Myer recommended
approval May 9, 1950, and William E. Warne, Assistant Secretary, approved
the Constitution and By-laws, ordering that "All officers and employees of
the Interior Department are ordered to abide by the provisions of the said
Constitution and By-laws." On May 9, 1949, the Secretary gave his
conditional approval of the ratification of the UKB Corporate Charter,
stipulating to the retention of all governmental authorities in the tribe
consistent with the Tribe's will and Federal-Indian law. William Warne's
conditions were explicit:
Upon ratification of this Charter all rules and regulations heretofore
promulgated by the Interior Department or by the Bureau of Indian
Affairs, so far as they may be incompatible with any of the provisions
of the said Charter and the Constitution and Bylaws will be
inapplicable to this Band from and after the date of their
ratification thereof.
All was ready for the UKB's IRA election.

THE 3 OCTOBER 1950 TRIBAL REFERENDUM APPROVING THE ORGANIC DOCUMENTS OF THE
UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA

Area Director Roberts received orders dated 8 May 1950, from Assistant
Secretary - Interior William E. Warne to conduct the election to approve
the UKB Charter, Constitution and By-laws. Certain changes in the organic
By-laws were to be announced to the Tribe, and any interested voters were
to be provided copies of the Constitution, By-laws and Corporate Charter on
request (*: IV; File # 43292-46). The number of elected representatives
from the nine districts was to be nine, instead of 27, with four officers
at large (UKB By-laws, Section 6, Article V). Thus, the Band had to alter
Article IV so that a majority of seven Council members could call special
meetings. UKB By-laws, Sections 2 and 3, Article VII, referring that
voters affiliate with a particular district, were altered to allow a member
to provide written notification to the Council of choice of affiliation,
subject to the provision that no member may vote in more than one district.
The Department rewrote Section 3(t) of the Charter to reflect that the only
treaties in which the UKB had an interest were Cherokee Nation's treaties
with the U. S. Copies of the proposed Constitution and Bylaws and Corporate
Charter are in the NARA files:
The original and a carbon copy of the proposed Constitution and
Bylaws and Corporate Charter are submitted herewith and copies are to
be distributed prior to the election by employees of the Indian
Service and by representatives of the Band to any voter requesting a
copy.
The Department also amended Section 9 of the Charter to comply with
Departmental Regulations providing that "the Charter shall not be in effect
unless the Constitution and Bylaws have been ratified." The Department
required carbons or mimeographed copies of the approved documents with
attached certifications attached and executed by proper Indian Service and
tribal officials certifying the date and results of the election. Warne
directed Roberts to retain the original documents in his office for
safekeeping. Signed and certified copies also appear in the NARA files, as
indicated below. The memo was surnamed by: Gilbault, NcNickle, Daiker,
Gifford, Rudolph, Cooley, with a notation that the Indian Office had re-
written pages 2 and 3 of the Charter on 1/23/50; and by Emery, Greenwood,
Provinse and Nichols, with a notation that the Indian Office had done
additional rewrite on 4/7/1950; and with finally surname by McNickle, Haas
and Commissioner Nichols. Warne added:
As soon as the election has been held and the results ascertained,
pursuant to the rules and regulations, the Constitution and Bylaws and
Corporate Charter, if ratified, will be immediately effective, except
that the Charter will not be effective unless the Constitution and
Bylaws are adopted, as noted. Carbon copies or mimeographed copies of
the documents should be returned to the Bureau of Indian Affairs with
certificate forms attached to the documents executed by the proper
Indian Services and tribal officials certifying as to the date and the
results of the election. The original documents should be retained in
your office for safekeeping.
On June 6, 1950, at the Tahlequah Court House, the UKB Provisional Council
approved all the Department's recommendations for changes in the proposed
Constitution, By-laws and Charter in an official Resolution (*: IV; UKB
Resolution, 6 June 1950). In an attached Letter of that date, covering
their formal resolution accepting the proposed drafts for final vote, the
Provisional Council informed Area Director W. O. Roberts that they had
accepted the Department's plans for the proposed elections, while
suggesting polling places and dates, and requesting voter education
meetings for the UKB under Agency supervision. In an additional resolution,
the Council complained that members of the organization had grown weary of
waiting for approval of the Charter, not realizing that Assistant Secretary
Warne's approval of 8 May 1950 was binding, as long as the tribal members
voted for the Constitution, By-laws and Charter. Of course, since the
Charter was already approved, subject to ratification of the Constitution
and By-laws, the election order already had been signed by Dillon S. Myer's
recommendation on May 8, 1950, no official response to the demand for an
approved Charter was necessary. Roberts followed up with the Secretary of
Interior, and Commissioner and Branch of Tribal Relations, to advise them
the election was set for October 3, 1950 [Letters, 17 July 1950; *: IV]
On 3 October 1950, the Tribe ratified these organic documents by a
vote of 1,414 for/1 against in 18 districts reporting (Bull Hollow district
poll was closed due to a flood), in an election in which at least 30
percent of those entitled cast their ballots, pursuant to Section 3 of OIWA
and the Act of August 10, 1946 (60 Stat. 970). The ballots were in the
following form:
BALLOT

Shall the Charter as issued by the Secretary of the Interior for the
United Keetoowah Band of Cherokee Indians in Oklahoma be ratified?

Yes No
.----------. .----------.
. . . .
. . . .
. . . .
. . . .
------------ ------------

If you want this Charter, make X in left square.
If not, make X in right.

Shall the Constitution and By-laws as issued by the Secretary of the
Interior for this United Keetoowah Band of Cherokee Indians in
Oklahoma be ratified?

Yes No
.----------. .----------.
. . . .
. . . .
. . . .
. . . .
------------ ------------

If you want this Constitution and By-laws, make X in left square.
If not, make X in right.

On October 5, 1950, at 11:05 p. m., the Election Supervisor, Rev. Jim
Pickup, and a member of the Election Board, White Runabout, delivered the
cardboard box containing all ballots cast in the Federal election to
approve the UKB organic documents, for which they received signed receipts
(*: IV; File # 43292-46). Rev. Jim Pickup, Chief, and White Runabout,
Secretary, and W. O. Roberts, Area Director, signed off on the
certification, and Superintendent Roberts kept the original to be attached
to the original Constitution. The Five Tribes Agency transmitted the
original signed copies of these documents in October and November 1950.
Copies eventually were deposited in the National Archives collections in
Washington, D. C., where they now repose. The transmittal Letter from Area
Director Roberts to the Commissioner, dated October 5, 1950 (*: IV; File #
43292-46), showed election results according to the May 8, 1950
authorization signed by Assistant Secretary - Interior Warne, and a copy of
the official receipt of ballots by the appropriate officials, as well as
copies of the approved Corporate Charter and of the Constitution and By-
laws of the United Keetoowah Band of Cherokee Indians in Oklahoma. W. O.
Roberts concluded on 5 October 1950, "The United Keetoowah Band of Cherokee
Indians of Oklahoma are recognized by special Act of Congress dated August
10, 1946 - 60 Stat. 976."(*: IV; File # 43292-46). On 16 October 1950,
Roberts sent the Commissioner a transmittal letter, saying:
We have previously mailed to your office six unsigned copies of
the Constitution and Bylaws of the United Keetoowah Band of Cherokee
Indians in Oklahoma. We are now forwarding to you, six copies signed
by the proper officials in accordance with letter dated May 8, 1950
from the Assistant Secretary, William E. Warne.(*: IV; File # 19960-
50, in File # 43292-46).
This memo crossed in the mail a letter dated 17 October 1950, from Tribal
Relations Officer Marie L. Hayes, requesting these same materials from
Roberts (*: IV; File # 43292-46) However, Roberts spoke too soon in his 16
October letter, for on 6 November 1950, Roberts sent Branch of Tribal
Relations Chief, D'Arcy McNickle, "six properly signed copies of the
Corporate Charter and one properly signed copy of the Constitution and By-
laws of the United Keetoowah Band of Cherokee Indians in Oklahoma," noting,
"These copies of the Charter should have accompanied the Constitution and
By-laws which we recently send [sic] to your office."
Tribal relations in the United Keetoowah Band of Cherokee Indians in
Oklahoma persisted after the Keetoowah Bill was implemented, and after the
Tribe approved their organic documents by special referendum on October 3,
1950, in a secretarially supervised election. UKB tribal activities
continued while Cherokee "Nation" or "Tribe" slept on as a caretaker
government under appointed Principal Chiefs; and the UKB persisted after
Cherokee Nation of Oklahoma convened elections in the mid-1970s in the face
of efforts to terminate them administratively.
The UKB has insisted on many occasions that their reorganization was
complete, and that the archival record proves their case. BIA officials
have countered on at least one occasion that the BIA never has found any
duly signed official copies of the UKB Charter, Constitution and Bylaws or
other records in Federal custody proving that the UKB ever had a
secretarial election to adopt those organic documents. One can only
charitably conclude that the BIA's representations are at best the result
of some very poor research methods. The BIA's stunning failure to unearth
these documents at any time during the UKB status controversy must raise
the question whether any of the BIA's conclusions concerning the status of
the CNO are reliable.
The NARA retains original signed copies of the UKB organic documents
and other records reflecting the completion of the UKB reorganization
process. NARA files validate the Agency Superintendent's transmittal of six
unsigned copies of the UKB's new organic documents, on October 16, 1950.
The files also show Roberts indeed forwarded six copies signed by the
proper officials in compliance with the order of 8 May 1950 from Assistant
Secretary Warne, recalling, his office had "previously mailed to your
office six unsigned copies of the Constitution and Bylaws of the United
Keetoowah Band of Cherokee Indians in Oklahoma."(Central Classified Files
of the Department of Interior. Box 330. Accessions 57A-185. Records for
1948-1952. Cherokee Nation. 00-219 (010.-020.; 050.-059., Box # 12), File
# 19960, included in # 43292. Originally in Box # 36, Accessions 56A-588,
1-58, 14/46:49-1, 1946) When Marie L. Hayes, Tribal Relations Officer -
Indian Affairs, sent a letter on 17 Oct. 1951, to Area Director W. O.
Roberts, Muskogee Area Office, requesting that more these documents "be
forwarded as soon as possible," she specifically asked Roberts to obtain
signatures of the Tribal Chairman, Rev. Jim Pickup, and his Secretary, on
additional unsigned copies of these documents. The transmittal Letter from
Area Director Roberts to the Commissioner, dated November 6, 1950, referred
to the eventual transmittal of six properly signed copies of the Corporate
Charter and one properly signed copy of the Constitution and By-laws of the
United Keetoowah Band of Cherokee Indians in Oklahoma, though they were
shipped separately from the approved Constitution and By-laws. The UKB did
their job.
The UKB Provisional Council met on 5 October 1950 to discuss the
election and the need to move on to appointment of provisional officers, in
keeping with Article 10 of the Constitution and By-laws, preferably on 6
November 1950. In the event the election did not take place, the effect of
Article 10 would be to leave the Provisional Council and Officers in place
pending the proper election and qualification of successors.(Minutes, UKB
Constitution Committee, 5 October 1950) Earl Boyd Pierce wrote to Muskogee
Area Director W. O. Roberts, attempting to set up a meeting on 21 October
1950 for the UKB with Roberts and his Muskogee Agency staff to discuss "the
preparation and projection of a permanent organization" for the UKB. The
meeting would begin with the appointment of a provisional council, in
accordance with Article 10 of the Constitution. Renetta Jacobson, Acting
Temporary Secretary of the UKB, had notified the Constitutional Committee
of the meeting and fullbloods in each of the nine districts, but the UKB
also hoped that Roberts would provide some publicity. The UKB was concerned
about moving quickly to set up permanent coordination of their affairs,
using the services of a manager. Mr. John Walker, a BIA District Agent from
Stilwell who had assisted in the UKB election on 3 October 1950, was
suggested as a candidate.(Letter, 6 October 1950, Earl Boyd Pierce to Area
Director W. O. Roberts) Roberts designated John Walker to act as BIA
liaison officer, to acquaint the Band "with the social and ecnomic
possibilities which the Indian Service might extend to this group."(Letter,
16 October 1950, Area Director W. O. Roberts to Earl Boyd Pierce)
In October and November 1950, the UKB attempted to acquire land to use
for the purposes of tribal offices, a meeting place, and economic
development. W. O. Roberts, forgetful of Pickup's unflagging support when
the BIA nearly fired him, turned a cold shoulder to the UKB's requests for
allocations under the Stigler Rehabilitation Fund, the Revolving Loan Fund,
or other sources. Creating a wonderful Catch 22, Roberts opined that the
BIA didn't have any money except for producers or supervisors as Congress
prescribed, and that in his view, "Indian organizations as such are in
effect political rather than economic." Roberts obdurately refused even to
call the Band a Tribe.(Memorandum, 25 October 1950, "The Keetoowah Society
of Oklahoma Cherokees, 1950") Pickup should have rid himself of the
churlish lout while he had the chance; but this was, after all,
Termination's Heyday.
Correspondence flowed between Secretary White Runabout of the UKB and
Mrs. Gussie Hopper Kirby of Ottumwa, Iowa, regarding the availability of
her 40 acres of land in Adair County. This was the property on which the
UKB meeting house at Lyons stood, and where the UKB had been holding
regular meetings for over 10 years. Runabout had found that at one time
Mrs. Kirby had tried to sell it, but that the Agency would not permit the
buyer to use restricted Indian funds to purchase the land at the offering
price. Pierce met with the UKB in November, and offered to buy the tract of
land, if it was available at a reasonable price, and allow them to use
it.(Letter, 2 December 1950, Earl Boyd Pierce to Mrs. Gussie Hopper Kirby)
The proposal failed, and still the UKB was without a permanent meeting
place.
Oddly enough, the BIA was slow to respond even to the UKB's request
for the published copy of their ratified organic documents. On 16 May 1951,
Rev. Jim Pickup of the UKB wrote to Commissioner William Zimmerman,
"inquiring about our Corporate Charter and Constitution and Bylaws, that
was sineged [sic] by William E. Warne, and never have heard anything about
it." Assistant Commissioner John H. Provinse responded on 13 June 1951,
remarking that Zimmerman had left the Indian Service over a year before,
but reassuring Pickup that:
The Constitution and Bylaws and the Corporate Charter of the United
Keetoowah Band of Cherokees became effective on October 3, 1950, the
date they were adopted by the members of the band.
Provinse assured Pickup that the printed documents would be available soon,
and that the BIA would notify Muskogee Area Director W. O. Roberts as soon
as they were in print. Tribal Relations Officer Erma Hicks surnamed the
letter.
It appears that shortly after the UKB election to adopt the UKB
Constitution and Bylaws on 3 October 1950, any remainig mimeographed copies
of these documents mysteriously vanished into the bowels of the Old Federal
Building in Muskogee. The Muskogee Area Office was supposed to have the
remainder. On 31 May 1951, "as a member of said tribe" George Groundhog
requested copies of the recently-adopted organic documents of the "Cherokee
Tribe of Oklahoma," in a letter to Commissioner Dillon S. Meyer. Groundhog
received assurance from Assistant Commissioner John H. Provinse, in a
letter of 13 June 1951, that the materials would be printed soon. Meyer
carefully responded to Groundhog's request for materials related to the
recent election of the "Cherokee Tribe of Oklahoma" by saying, "We assume
you have reference to the Constitution and Bylaws and the Corporate Charter
of the United Keetoowah Band of Cherokee Indians of Oklahoma which were
adopted by the members of that Band on October 3, 1950."
The last correspondence in the NARA file on UKB reorganization, dated
17 August 1951, was Chief - Branch of Tribal Relations D'Arcy McNickle's
letter to George Groundhog, at Oklahoma A & M College, responding to
Groundhog's letter to Commissioner Dillon S. Meyer, dated 13 June 1951, and
9 August 1951, requesting copies of the Constitution, Bylaws and Corporate
Charter of the UKB. McNickle advised Groundhog that the GPO was printing
these documents, and that upon publication, copies would be available at
the Muskogee Area Office. McNickle obliged Groundhog, in the meantime, by
supplying him with a mimeographed copy. Gilbault surnamed the letter. The
Seven Clans Society persisted until 1956 in attempts to reorganize under
OIWA and IRA, and enlisted the aid of Congressman Ed Edmonson, to no avail.
Levi Gritts died at the age of 78 on 27 January 1952, having pursued the
Cherokee claims and reorganizations for over fifty years.(Obituary of Levi
Gritts, Muskogee Times Democrat, 28 January 1952)
It appears from the stamps indicating date of receipt on much of the
correspondence in the Fort Worth NARA that most of the Five Civilized
Tribes' records relating to the UKB are on file there.

THE UKB DURING THE TERMINATION ERA, 1950 - 1962

Today, CNO claims either that the UKB was created by Cherokees as a
revolving credit association, or as an entity that would have standing to
sue in the Court of Claims in the event that the Court found the Cherokee
Nation had been terminated. In either event, CNO claims that the UKB has
served its purpose and dissolved voluntarily. The facts discredit this
notion. In 1951, the UKB attempted to participate in the revolving credit
programs available under OIWA.(Letter, 29 June 1951, Chief Jim Pickup to
Earl Boyd Pierce) Earl Boyd Pierce advised UKB Chief Pickup to set up a
meeting on his own with Tribal Relations Officer Marie L. Hayes in the
Muskogee Area Office to discuss all the necessary procedures applicants had
to follow to obtain loans, as well as the new Stigler Bill for
Rehabilitation of Indians.(Letter, 6 May 1952, Earl Boyd Pierce to Area
Director W. O. Roberts) Though the UKB Council continued to find ways to
participate in the revolving credit program for years, they were foiled at
every turn, as the reader will see. UKB members eventually were advised to
go to the same Credit Associations serving non-Indians in Mayes, Muskogee
and Seminole Counties.(Letter, 8 August 1951, Chief Jim Pickup to W. W.
Keeler, Miscellaneous, No. 81, Keeler Mscpts., Cherokee Nation Historical
Society; Leeds 1992: 46)
By 1952, the Termination era was under way in Oklahoma. The UKB became
involved in efforts to prevent changes in the administration of health
services for Indians and the operation of Indian hospitals with the
transfer of administration from the BIA to Public Health Service. H. R.
1043 provided for medical services to non-Indians in Indian hsopitals,
which allowed Indians under one-half degree Indian blood to use the
facilities.(Letter, 6 May 1952, Earl Boyd Pierce to Area Director W. O.
Roberts). The BIA encouraged the UKB to withhold resolutions opposing the
measure until the terms and conditions of service had been
determined.(Letter, 12 May, 1952, Marie L. Hayes, Tribal Relations Officer,
Muskogee Area Office, to Earl Boyd Pierce) Problems with regard to the
trust assets of the Keetoowahs remained bothersome throughout the 'fifties.
The most complete and concise source on the status and condition of
the Cherokee Tribe or Nation after the UKB reorganization is the 30 June
1953 Report of Muskogee Area Director W. O. Roberts to the Honorable A. L.
Miller, Chairman, Committee on Interior and Insular Affairs. Roberts was
responding to an inquiry from the Committee in the form of a questionnaire,
dated 15 May 1953, on the subject of tribal organizations. The purpose of
the report was to prepare for the removal of Indian Bureau supervision from
the Five Tribes Area. The intent of the U. S. Congress and the Indian
Service since 1907 had been to allow the Cherokee Nation to terminate
itself by attrition of the residual powers, under the caretaker government
of Principal Chiefs, and later, the Chief and Executive Committee. John
Collier and the Indian Service made this finding during the hearings on the
Indian Reorganization Act, and Roberts repeated the same:
Inasmuch as the law applicable to restricted property of Cherokee
Indians provides for termination of restriction upon death (with
certain provisions) Federal trusteeship is being terminated by the
natural processes of time.
The answers Roberts offered to the questionnaire appeared in order, and
where self-explanatory, appear below:
1. Regarding Organization:
a. The Cherokee Tribe of Indians of Oklahoma are located in
Washington, Nowata, Craig, Rogers, Mayes, Delaware, Wagoner,
Cherokee, Adair, western half of Ottawa and eastern half of
Muskogee, and Sequoyah counties in Oklahoma. Until statehood
this territory was known as the Cherokee Nation.
The Cherokee Indians are dispersed throughout these
counties, intermingled with whites, amounting to about 12%
of the total population. The Cherokee Tribe has no written
constitution nor any formal organization. The Indians are in
all respects as other citizens.
[According to the UKB's official reckoning, in addition to "Washington,
Nowata, Craig, Rogers, Mayes, Delaware, Wagoner, Cherokee, Adair, western
half of Ottawa and eastern half of Muskogee, and Sequoyah counties in
Oklahoma," the UKB territory included the northeastern part of Tulsa
County.(Letter, 23 May 1981, UKB Chief James L. Gordon to Muskogee Area
Office, BIA, Tribal Operations, correcting Directory of Tribal Information
of the Muskogee Area Office, pp. 9-10, regarding UKB, and a Tribal Leaders
List" dated 5 January 1979 from the Branch of Tribal Relations, p. 18)]
b. The Cherokee Indians are affiliated with the political
parties of the State in about the same proportion and manner
as other citizens. In earlier times, there was rivalry as to
leadership, principally based on the question of affiliation
in the north or south during the Civil War and, prior to
this, the question of removal and resettlement in Oklahoma;
to some extent these rivalries continue. (See 5b).
c. The Cherokee Indians are in a practical sense culturally
assimilated, joining in all affairs of the State, County and
community where they live. There are a few groupings of
Indians led by older people who carry over some of the
earlier patterns but they are of no practical political
significance. The influence of such groups is more in a
sense of sentiment than of advanced or retarded social
programs.
d. The Cherokee Indians live in city, county or community the
same as other people. They vote; very frequently hold
office; are often members of school boards. They share in
all affairs of the State in all practical ways equal to
other citizens, including the benefits and prerogatives
accorded others.
e. The Cherokee Indian people are without question advancing
with the State as a whole to better social and economic
[condition?] Better education, better roads, communication
systems and electrical power contribute to this advancement.
Self-government in any practical sense among the Cherokee
people means the same kind of self-government any other
citizen exercises. There is no separate or special "self-
government." . . . [The Executive Committee of Cherokee
Nation] is composed of some eminence in their neighborhoods
who continue in office until they resign or die. The
Committee is advisory to the Principal Chief and Area
Director. . . .
3. Regarding Membership and Voting: (see a. 1.-3., above, regarding
30 July 1948 Convention and Election)
b. There are approximately 15,000 Cherokee Indians living in
the counties comprising the Old Cherokee Nation. The
Indians, according to estimates of county registration
officers, register and vote in all elections at about the
same proportion as other citizens. . . .
d. The Cherokee tribal rolls were closed in 1906 with a total
population of 36,905 Cherokees of all degrees of Indian
blood entitled to an allotment of land. There has been no
device either within the tribe or agency to record increase
or decrease since the rolls were closed, consequently, there
are no current tribal rolls. Births and deaths of the
Cherokee Indians are reported to the State Department of
Health the same as other citizens, which is true of all the
Five Tribes Indians. Estimates by the Principal Chief of the
Cherokee Tribe of Indians and of the Area Office place
tentatively the number of persons all over the country have
some degree of Cherokee Indian blood traceable to the final
Cherokee rolls at a total of something over 100,000 people.
The Cherokee Indians live in every state of the Union,
however, and most of these people do not regard themselves
as Indians . . . A special survey by the State Department of
Education and the Area Office in 1952 to determine work
loads and objectives in the Old Cherokee Nation discloses a
population of 8,820 rural Cherokee Indians. This survey
excluded towns of 500 and over and Indians of less than one-
half degree of Cherokee blood.
e. Adjusting the Census figures to date to include births and
deaths based on the State vital statistics figures since
1950, returned migrant Cherokees who may have been missed in
the Census enumeration; and adjustment for relocations since
1950 places the Cherokee Indian population in the Old
Cherokee Nation at 15,000.
f. All members of the Cherokee tribe have, as a rule, fixed
family names and fixed post office addresses.
g. There has been no effort to continue tribal rolls since they
were closed in 1906. Legislation, including the Curtis Act
of May 27, 1908, and subsequent legislation permitted
restrictions on lands only for those people of one-half or
more degree of Indian blood, consequently, the Indian
Service maintained records and service for Indians of that
degree of Indian blood only. While the appropriation bills
for education have extended possible assistance to people of
one-fourth degree of Indian blood, and the revolving credit
funds extended to those of one-fourth degree Indian blood,
other services were maintained for only those people having
one-half or more degree Indian blood. There are currently
17,000 persons in round numbers in all the Five Tribes who
have restricted land. It is estimated that the Cherokee
Indians have about one-fourth of this total. (From the
beginning of Indian administration at Muskogee, after the
closing of the rolls, completion of allotment and statehood,
which conferred full citizenship on Indians, the Agency
office was maintained as one unit without particular
differentiation among the tribes. In the main, the laws and
regulations are identical as applied to all Five Tribes
Indians.)
4. Regarding Income and Accounts: . . .
b. The tribe has no income except small amount of lease rental
from tracts of tribal land remaining in the possession of
the tribe. . . .
d. The tribe as a unit or entity has neither improved nor
deteriorated. It is the point of view that the Cherokee
Indians are citizens of the State the same as other people
and they are not necessarily trying to maintain a tribal
entity which could have little or no meaning for any of
them.
e. The Cherokee tribe has a small amount of tribal funds in the
U. S. Treasury which is accounted for in the usual fashion
of money so held. . . .
Land:
IRA purchases, title in U. S. Government for Cherokee tribe --
Delaware (Kenwood) County Project 9,479.74 acres
Scattered Tracts Project 2.104.51 acres
Unallotted Tribal lands 323.41 acres
Submarginal Kenwood (Acquired by resettlement administration and
allowed for use by Cherokee Indians) 13,910.00 acres
Adair Project 8,627.60 acres
Rocky Ford Day School Project 262.99 acres
Yonkers Project 992.47 acres
Funds: Unallotted Funds in U. S. Treasury
Proceeds of Lands, etc., Five Civilized Tribes, $4,450.57
[Emphasis added; and note, that the purchases were made under land
acquisition provided by the Indian Reorganization Act, presumably for the
benefit of a tribal organization organized under OIWA and IRA which
therefore was capable of assuming title. Query: Was it the intent of
Congress to provide these lands to the Cherokee Nation or Tribe; or to the
UKB as an OIWA/IRA organized entity composed of a band of the Cherokee
Tribe; or to both, in common?]
Interest and Accruals on Interest, Proceeds of
Lands, etc., Five Civilized Tribes, Oklahoma
(Cherokee) June 13, 1930 46L - 564 $ 246.16
Proceeds of Labor, Cherokee Indians, Oklahoma
(Cherokee) June 13, 1930 46L - 560 $ 67.52
Interest and Accruals on Interest, Cherokee
School Fund September 27, 1830 7L - 333 $ 12.30
------------
$4,776.55
[Note, that in the following section, for the first time, the Department
offers a clear determination of the composition of the Cherokee Tribe.]
5. Regarding Enterprise and Organizations:
a. The Cherokee tribe maintains no business enterprises or
activities.
b. In addition to the United Keetoowah Band, there are the
Nighthawk Society, the Seven Clan Society, the Four Mothers
Nation, Eastern and Western Immigrants, the Texas Cherokees
and Delaware Cherokees making up the total of the Cherokee
Tribe of Indians of Oklahoma. Except for the United
Keetoowah Band, none of these groups are officially
organized. There is an affiliation, however, which exercises
some influence in the Tribe.
The United Keetoowah Band of Cherokee Indians in Oklahoma
organized October 3, 1950, (Charter, Constitution and
Bylaws) by authority of Act of Congress dated August 10,
1946 (60 Stat. 976). Powers and privileges enumerated in the
Constitution, Bylaws and Charter are "authorized and offered
by the Oklahoma Indian Welfare Act of June 26, 1936, (49
Stat. 1967)". Membership approximately 3,000 members.
[Emphasis added. This finding states clearly and unambiguously that the UKB
is the only properly organized Cherokee tribal government in Oklahoma, as
of 1953. No legislative or judicial authority exists setting this
determination aside.]
6. Regarding Land Use: . . .
c. None. There has been a small amount of income from
submarginal lands which has been credited to a special
account for improvement of the lands.
d. The Agency land records are reasonably current and up to
date.
e. Indian restricted lands are to be found over the entire area
without segregation or grouping. There is no reservation and
there never has been in the Five Tribes. Consequently, it is
impractical to attempt to show Indian-owned lands on a map.
There are about 4,000 tracts of restricted Indian lands
owned by Cherokee Indians in the counties named, averaging
about 100 acres. In the county having the smallest amount of
Indian lands, it amounts to about 3% of the total. The
county having the largest amount of Indian land equals to
about 6 or 7%.
7. Regarding Law and Order:
a. All law and order in the Five Civilized Tribes is under
state law and is handled in the usual manner. There is no
separate provision for handling Indian offenses and there
has not been since Statehood.
8. Regarding Reports and Documents:
a. The Executive Committee, which official title is Executive
Committee of the Cherokee Nation, holds its meetings subject
to the call of the Principal Chief. The records of the
meetings are kept by the Executive Secretary of the
Committee, who prepares the material for final report. All
reports are available in the Area Office; copies are
furnished each member of the Executive Committee, the
Principal Chief, Branches of the Area Office, and the Indian
Office; on request, to members of Congress.
[Note here that the discussion centers on the Cherokee Nation Executive
Committee, not on the UKB Council, which also has submitted its minutes to
the Area Office and Indian Office, and to members of Congress for over 50
years. Perhaps the most revealing statement about Cherokee "tribal
organization" after 1907 appears in the following sub-section.]
b. For many years after Statehood, the tribe had no
representation except the Chief. In 1948, it was considered
desirable to organize a committee in order to select
attorneys, provide for proper handling of claims, to assist
in reaching proper decision in tribal rights (for example,
dam construction inundated certain tribal property and the
question of the rights of the tribe in the Arkansas, Grand
and Illinois River beds (gravel, etc.) The Agency cooperates
with the Committee to the extent of assisting in making
records of the proceedings of the meetings, the distribution
of the material and of the follow-up necessary to
conclusion.
c. We see no deficiency or difficulty in the present
arrangement. . . .
[Emphasis added. The "current arrangement" allowed the Principal Chief to
conduct a government-at-will. The 1993-era government continues to be
administratively condoned, and without OIWA/IRA reorganization. The
following section deals with the proposed imposition of full termination on
all the entities under the supervision of the Five Tribes Agency.]
9. Regarding Removal of Indian Bureau Supervision:
a. The youngest allotted Indians are about 45 years old. There
are a few who desire release from the supervision of the
Federal government, and this is accomplished through a local
provision by which Indians may apply for removal of
restrictions of their property. When Indians reach advanced
years, many of them are unable to use their land
productively, therefore, wish to qualify for public
assistance. In order to do so, they must comply with the
laws and regulations of the Department of Public Welfare .
. . [When land is sold to settle estates of deceased
allottees, the Federal trusteeship is terminated with the
first generation of allotted Indians.]
b. As a rule, the Cherokee Indians, who have restricted lands,
are reaching advancing years; They feel they have acquired
their land by direct result of treaty negotiation and
agreement with the Dawes Commission. They believe that they
should be permitted to continue their title under this
provision during their lifetime. In all matters, however,
other than land restrictions and homestead tax exemptions,
the Indians are willing and do accept their full share of
the responsibilities of the communities where they live to
the best of their ability.
c. We consider the Cherokee Indians do assume full citizenship
and that they are regarded by their communities where they
live as equal citizens in every way. There are no obstacles
to fullest expression of citizenship to whatever extent the
person is capable and willing to exercise it.
d. Inasmuch as the law applicable to restricted property of
Cherokee Indians provides for termination of restriction
upon death (with certain provisions) Federal trusteeship is
being terminated by the natural processes of time.
10. Reappraisal of Factors:
a. The problems of the Cherokee people are principally those of
social and economic distress. Where neglected communities
were unable to provide public schools, there is language
handicap and illiteracy. Usually, there is a tendency for
such people to withdraw from the communities about them.
There is consequent neglect or ignorance of sanitation,
public health and economic know-how. This situation is to be
found in some communities among the younger Indians. The
Agency and State Departments of Education are making
vigorous strides to correct this condition.
b. The Cherokee Indians in July, 1948, selected their Claims
Attorneys and the work is progressing to the extent all
claims have been presented to the Indian Claims Commission,
some have been argued and all will be concluded within the
statutory limitations.
c. The Cherokee tribe of Indians had taken the lead in earlier
times to bring Indian Territory into the Nation as a State.
This proposal was not acceptable to Congress, but was the
basis by which Oklahoma became a State, by expending the
area to include the whole of the Oklahoma Territory. The
first delegation in Congress was made up of Cherokee
Indians. They immediately, with the help of Senator Curtis
of Kansas, who himself was a Kaw Indian, secured the passage
of the 1908 Act (Act of Congress, approved May 27, 1908, U.
S. State. 312) which released all persons from Federal
supervision having less than one-half degree of Indian
blood. This was accomplished by permitting restrictions on
land only for those persons having one-half or more degree
of Indian blood.
The Cherokees of one-half or more Indian blood were the last and least
likely to "be terminated by the natural process of time."
On 28 December 1953, The UKB requested the advice of their attorney,
Earl Boyd Pierce, regarding the OIWA and IRA as they applied to the UKB,
and demanded that he respond by 2 January 1954. Noting that "We have done
everything the government has requested for us to do, even to getting a
Charter," the Band asked for an explanation of Section 7 of the IRA and
Sections 9, 10, 11, and 12 of the OIWA. The UKB wanted to know the
following:
1. Is the money now available as defined in the Okla. Welfare Act? to
buy land, etc.
2. Does Mr. Pickup or the Council of said band appoint a loaning
board? if so will they be allowed compensation.
3. If not available at present, what steps should we take in order to
get this started?
4. Would you want a delegation to contact you on these important
matters? if so you may make a date, we will do so.(Letter, 28
December 1953, UKB Acting Clerk Gus Hummingbird to Earl Boyd Pierce)
Pierce advised the UKB Council that the rules respecting the revolving
credit program had changed, allowing the UKB finally to organize a daughter
organization which would provide a vehicle allowing them to participate.
Earl Boyd Pierce advised Chief Jim Pickup:
I'm sending you the new rules with respect to loans. You will
notice in the second paragraph that chartered organizations such as
the Keetoowahs are now permitted to receive loans from the revolving
credit funds.
You should advise your officers of the new change in policy, and
take steps to further organize for the purpose of securing
loans.(Letter, 30 December 1953, Earl Boyd Pierce to Chief Jim Pickup)
Pierce also advised UKB Clerk Gus Hummingbird to form a committee of the
UKB to meet with Area Director W. O. Roberts, adding:
I shall be glad to assist the committee in any way I can on any date
that can be arranged with Mr. Roberts. I am sending him a copy of this
letter with the suggestion that he communicate directly with you and
aggree on a date for your committee to come to Muskogee.(Letter, 30
December 1953, Earl Boyd Pierce to Chief Jim Pickup)
Superintendent Roberts always resisted the UKB reorganization until there
was no avoiding it, and then did all he could to suppress it. When the UKB
pressed for the right to participate in the revolving credit fund program,
Roberts first out that though they constituted a federally-recognized
tribe, they did not constitute a proper recipient organization:
This will acknowledge your letter of December 16, 1953, written
in behalf of the United Keetoowah Band of Cherokee Indians relative to
certain matters which you wish to have clarified. A representative of
this office met with you on January 2 at the West Peavine School and
it is hoped some of your questions have been made clear; however, I
am answering your questions in order;
1. There is no money available now and insofar as we know, there
will be none appropriated for making loans to organized groups or
Tribes.
2. The United Keetoowah Society is looked upon as an organized band
of Indians but it has not been the recent practice of Congress to
make money available for loans to such organizations. Among other
things, the reason probably is the inability to supervise and
manage a program in behalf of a group of people.
3. The reason that individual loans are not being made now to
purchase land is because of the expressed policy of the Congress
and the Bureau of Indian Affairs to close out management and
supervision of Indian Affairs at as early a date as practicable.
Purchasing land through a loan program would extend Indian
administration beyond the time that other services probably would
be ended.
4. Part of the money set out in Section 9 of the Oklahoma Indian
Welfare Act was made available for loans in Oklahoma. Congress
has not continued making the appropriations.
(Letter, 5 January 1954, Superintendent W. O. Roberts, Muskogee
Agency, to Gus Hummingbird, UKB Clerk; see Leeds 1992: 49-50)
Roberts added that he would have no objection if the Band contacted
Congress themselves, but made it very clear that he would neither encourage
nor support them. Chief Pickup had not kept his Council informed of his
previous interactions with Roberts, or else he had left it up to them to
make another try. Pickup had just remarried and moved to Sallisaw to pastor
a new church, and was busy with his own problems during 1953 and
1954.(Leeds 1992: 50) He left Gus Hummingbird and Jeff Tindle to keep up
with business.
A major reason Principal Chief Keeler had for creating the Cherokee
Foundation was to prepare for the day when the U. S. would sever ties from
the non-Keetoowah Cherokees. Indeed, the final dissolution was under way
even as Roberts was pushing the Keetoowahs out of his door in 1954. C. C.
Victory and others wanted to prevent the UKB from representing Cherokee
interests, and hoped that the Foundation would hold the trust assets of
Cherokee Nation.(Leeds 1992: 49) Here lay began the excavation for the
Jelanuno Trust of 1972. In 1956, the Executive Committee and Keeler
petitioned President Eisenhower and Commissioner Glenn Emmons to make the
Cherokee Foundation the sole trustee for all funds and property belonging
to Cherokee Nation, and the recipient of any judgment funds. Had they
succeeded, they could have eliminated the future rights of the UKB.(Leeds
1992: 49)
The draft of the bill to "supplement" the Act of April 26, 1906 (34
Stat. 13) would have delivered the coup de gras.("An Act to provide for the
final disposition of the affairs of the Five Civilized Tribes in the Indian
Territory, and for other purposes," n. d.; accompanying Letter, 20 November
1956, C. C. Victory to T. R. Cobb, in Cherokee Correspondence, July 1956-
June 1957, Keeler Manuscripts, Cherokee Nation Historical Society) Recall
that between 1936 and 1940 the U. S. acquired lands for the Cherokee Tribe,
to be held in trust for a tribe that organized under OIWA and IRA. These
lands were in Kenwood (Delaware County), Candy Mink (Adair County), Rocky
Ford (Cherokee County), and Grand River (Yonkers, in Mayes County), and
that Chief Pickup and Sam Hider were Cherokee Trustees for the
land.[Letter, C. C. Marrs for Paul Fickinger, Muskogee Area Office, BIA, 18
September 1957, "Report on Status of the Cherokee Rehabilitation
Projects," to Assistant Commissioner of Indian Affairs (Resources); Leeds
1992: 54] The Department's biggest Termination chore concerning the Five
Tribes' termination was to be the disposal of these trust lands and
associated trust accounts. As the Termination Report of W. O. Roberts had
hinted in 1953, the BIA planned to sell the unallotted lands, belonging to
the UKB, and to pay the U. S. the money spent purchasing the former lands.
As Trustee, Chief Pickup took this threat very personally.
Note that all talk of reorganizing Cherokee Nation itself was
suppressed throughout the period in which Congress actively pursued
termination. Discussions of the possibility of reorganizing Cherokee Nation
re-emerged in 1964, to no avail. In 1970, the discussions began again, and
by that time, the UKB had representation on the Executive Committee of
Cherokee Nation, expressly for the purpose of assuring the rights of
Keetoowahs to participate in property and programs of the Cherokee Tribe.
Never in this historical process did the UKB willingly or knowingly
surrender any aspect of its reserved sovereignty to Cherokee Nation or its
appointed or "selected" government.
In the Report of Meeting of the Executive Committee of the Cherokee
Nation Held at Tahlequah, Oklahoma, October 24, 1954, representatives were
asked "to join together in a plan of cooperative working relationships in
meeting the social and economic needs of the Cherokee people." Regarding
the political relations of the Cherokee Nation, Keeler discussed the point
(p. 6) that:
There is interest on the part of many of the Cherokees in having an
election by vote of the people in the selection of a Principal Chief;
that in his opinion a selection by vote of the Cherokee people is more
desirable (This however determined not to be feasible.) [Emphasis
added]
So, in 1954, the Department recalled that under the Curtis and Dawes Acts,
the President still retained the sole authority to "select," or appoint, a
Principal Chief of Cherokee Nation, notwithstanding the creation of the
Executive Committee at the Cherokee Nation Convention in 1948. Indeed,
Cherokee Nation's failure or inability to reorganize under OIWA an IRA made
an Act of Congress necessary in 1970, before Cherokee Dawes descendants,
instead of the U. S. President, could "select" the Chief. Through the
Bellmon Bill, Congress allowed the Cherokee people to "select," not
"elect," a Principal Chief.
Keeler's appointment as Principal Chief had survived the efforts of a
popular Convention of members of Cherokee Nation in June 1954 to elect a
Chief, Assistant Chief, Secretary-Treasurer and nine Council members, and
Daniel Foreman's claim to be the newly elected Chief. Foreman was a member
of the Keetoowah Society, Inc. It seems that after 1950, the Corporation
rallied briefly, long enough to try another end run. Chief Pickup and Gus
Hummingbird continued to support Keeler, however, and took no part
themselves in the 1954 effort to remove him.(Leeds 1992: 51) Keeler
explained himself:
His term of office, after expiration on December 1, 1953, was extended
by the Commissioner of Indian Affairs through June 30, 1954. On July
21, 1954, under authority for the appointment of a Principal Chief
contained in Section 6 of the Act of Congress approved April 26, 1906
(34 Stat. 137), which authority was delegated to the Secretary of the
Interior by the President of the United States in Executive Order No.
10250, dated June 5, 1951 (16 F.R. 5385, June 7, 1951) his term of
office retroactive to June 30, 1954, as Principal Chief of the
Cherokee Nation, was extended to permit him to serve at the pleasure
of the Secretary of Interior.
Muskogee Area Office Administrative Assistant Marie Hayes pointed out that
"the results of the so-called election could not be recognized since plans
had not been worked out with proper officials of the United States
Government." BIA Commissioner Emmons continued to regard Keeler as
Principal Chief, and appeared to feel the Cherokee Nation lacked funds for
a general selection, but that in the interim, Keeler should continue as
Principal Chief of Cherokee Nation, pending such time as there could be a
general selection to adopt a government in compliance with OIWA and IRA.
Keeler and Pierce avoided the issue of reorganization under OIWA and IRA,
which would have eliminated the Cherokee Nation's status quo under the 1906
Act by creating an entirely new tribal organization. After a general
discussion of proper representation of the Cherokees at a "proper
election," attorney Earl Boyd Pierce "again reviewed the dissolution of the
Cherokee Tribal government and emphasized the program of Principal Chief
Keeler and Executive Committee . . . ," among other matters, including
ongoing litigation.(Emphasis added) Cherokee Nation's business still was
the completion of Cherokee Nation's housekeeping chores during the
Termination Era.
In an 26 October 1954, memorandum addressed to Principal Chief,
Cherokee Nation, W. W. Keeler, Members of the Executive Committee of the
Cherokee Nation, and the leaders of the UKB (represented by Chief Jeff
Tindle, who served as UKB Chief, 1954-1957 and 1957-1960), Seven Clan
Society (Eli Pumpkin), Nighthawk Society (not represented, because Stokes
Smith was noticeably absent), Four Mother Nations (Tom Christy), Eastern
(Immigrant) Cherokees (George Duck), Keetoowah Society (Daniel Foreman),
Texas Cherokees (Homer Smith), Delaware Cherokees (H. L. McCracken), and
the Cherokee Foundation, Muskogee Area Office Director Paul L. Fickinger
praised the leaders within the old Cherokee Nation territory. Recall that
the Four Mother Nations include Cherokee, Creek, Choctaw and Chickasaw, but
that the Department of the Interior had found them to be predominantly
Creek. [Central Classified Files of the BIA, Department of Interior. Box
463. Accessions 56A-588. Records for 1948-1952. Five Tribes. 010.
Legislation (011.-015.)] No one believed that the named tribes, or Four
Mother Nations, were necessarily politically affiliated either with
Cherokee Nation or the Executive Committee. Keeler commended their response
to Keeler's suggestion at a 24 October 1954 meeting of the Executive
Committee of the Cherokee Nation that all Cherokee organizations and the
UKB join him in a plan of cooperative working relationships:
The response of the Indian leaders within the Cherokee Nation to
the suggestion made by Principal Chief W. W. Keeler to join together
in a plan of cooperative working relationships in meeting the social
and economic needs of the Cherokee people is indeed an outstanding
example of the spirit of constructive leadership which is needed in
overcoming the social and economic barriers in retarded [sic!] Indian
communities. . . .
As emphasized at the meeting on October 24, the policy of the
Indian Service is to assist the Indian people in preparing themselves
to fit into their communities and to look to the same agencies for
help and services as all other citizens in the community,
in short, the Principal Chief's purpose was to assist the Indian people to
prepare for full termination, as envisioned in the 1950s. Nothing in the
Area Director's statement suggested that even Keeler believed the groups
constituted a new, unified Cherokee Nation or Tribe government. Of these,
only the UKB was a federally-recognized Tribe organized under OIWA/IRA.
In the meantime, the UKB struggled along until the late 1950s,
conducting business as best they could, and holding at least three
regulations and a special election with no financial support except their
own contributions and community fundraising efforts.(See official
correspondence regarding this controversy, 1956-1958, in Appendix IV).
Initial terms for officers and council members of the UKB expired on 8 May
1954, but the election was not held to seat their successors until
September. Minutes and contemporary accounts indicate that 200 or more
individual members attended the regular meetings throughout the 1950s and
1960s. In an election on 8 September 1954, Jeff Tindle succeeded Rev. Jim
Pickup as Chief. There were new officers and council members: George
Hummingbird, Vice-Chief; Gus Hummingbird, Secretary; John Ketcher,
Treasurer; and council members Rachel Quinton, Richard Henson, Sam Wolf,
Chulio Step, Dan Gregsby, Albert Christie, Steve McKay, Jim Pickup, and Sam
Littledeer. The Department required the Band to provide evidence of
compliance with the UKB Constitutions, Article VII - Elections and VIII -
Vacancies.(Leeds 1992: 52-53; Letter, 20 December 1954 Muskogee Area Acting
Director F. M. Haverland to UKB Chief Jeff Tindle)(Leeds 1992: 52-53)

A very weird thing happened, politically speaking, in 1955. It had to
do with Jesus Christ's membership [Webmaster's note: some Keetoowah's say it was
actually an adoption] in the Keetoowah Society (and no, we are not making this up).
The Nighthawks at the Redbird Smith Stomp Grounds were in civil strife. Stokes Smith,
Redbird's youngest, was Chief. Before Redbird died, he told his people to incorporate the worship
[Webmaster's note: some say veneration and that they don't worship him as "Savior"]
of Christ into Nighthawk religion. In 1936, the Keetoowah Society amended its constitution
to recognize Christ. While Stokes had acquiesced and signed the measure,
he and other elders were unhappy.

William Lee Smith, current Nighthawk
Chief at Stokes Smith's Grounds, says his father, Stokes, took the fire,
wampum and pipe, and left the original grounds, but left part of the fire.

The Redbird Grounds people then joined the UKB, realizing they could
worship Christ and be Keetoowahs, and have the advantages of political
recognition all at the same time, and God would not mind. Thereafter,
Stokes' followers refused to recognize either the UKB or his other
relatives at Redbirds, although Redbird is still an object of
veneration. (Leeds 1992: 60)

On 3 January 1956, the UKB returned Chief Jim Pickup to office (1956-
1957) to complete the brief term of his own successor, Jeff Tindle, who had
served since the November 1954 election. The UKB had difficulties obtaining
certification of the regular election of Chief Jim Pickup and other
Officers and Tribal Council on 7 August 1956, due in part to technical
requirements for filing election results, transmission of ballots and
certification. Under Chief Pickup's guidance (1956-1957), the UKB resolved
to oppose the sale of Kenwood land:
Their are so many Indians living in that area, if removed where would
they go, they would not have any place to go. This area was prepared
for the Indians. That they may live on the land. We ought to come
together some agreemetn with those Indians. We are aksing you
assistance. We beg and pray.(Verbatim, Letter, 22 October 1956, UKB
Chief Jim Pickup to Commissioner of Indian Affairs Glenn Emmons; also,
Letter, 29 November 1956, Commissioner of Indian Affairs Glenn Emmons
to UKB Chief Jim Pickup; in Leeds 1992: 55)
Pickup, as Trustee, wanted to help manage this land. Chief Jeff Tindle
wanted control, also (1954-1956, 1957-1960). Tindle, a relatively young
half-blood, was educated and active in politics, serving as local
Republican Party Chair. for some years.(Leeds 1992: 55) Chief Tindle wrote
to Muskogee Area Director Paul Fickinger, asking him to attend the November
1954 UKB Council Meeting. Marie Wadley told him that she and Assistant Area
Director Fred Haverland would attend.(Letter, 7 October 1954, Chief Jeff
Tindle to Muskogee Superintendent Paul Fickinger; Letter, 18 November 1954,
Marie Wadley to Chief Jeff Tindle) Fickinger challenged Tindle's election,
saying the September 1954 balloting was illegal, and demanded documents
ffrom the Council and Pickup verifying the validity of the
procedure.(Letter, 30 December 1954, Assistant Area Director F. Haverland
to Chief Jeff Tindle, UKB; Leeds 1992: 56) The reasons for Area Director
Fickinger's years-long war of wills with the UKB Council would remain
obscure, except for a brief and stormy exchange between the UKB and
Fickinger and the Commissioner regarding the disposition of Cherokee trust
assets, starting with the UKB Council's adoption of a 2 October 1956
Resolution opposing the sale of the Kenwood Indian lands. Commissioner
Glenn L. Emmons wrote to Rev. Jim Pickup on 29 November 1956:
Your letter of October 22, 1956, submitted a resolution of the
United Keetoowah Band of Cherokee Indians of Oklahoma opposing the
disposition of certain lands located in the Cherokee area.
The Act of April 26, 1906 (34 Stat. 137), provided for the final
disposition of the affairs of the Five Civilized Tribes and for other
purposes. Consideration is now being given as to the means of
implementing this act to the best interests of the Indians concerned.
Recently, meetings were held with the principal chiefs, or their
representatives concerning this matter.
It is suggested that you contact Chief William Keeler or Mr. C.
C. Victory, who has been assisting Chief Keeler in considering this
problem. I am sure they will appreciate receiving your suggestions
concerning this and will be glad to discuss it with you.
Chiefs Pickup and Tindle alike remained stubborn in their resistance to
erosion of Keetoowah sovereignty.
On 5 January 1956, Pickup informed Fickinger that the Tribe had
election him Chief on 3 January 1956, asking for a meeting.(Letter, 5
January 1956, Chief Jim Pickup, UKB, to Muskogee Area Director Fickinger)
For a time, controversy continued over the authority of Sam Hider or Rev.
Jim Pickup, but during that time, the officers continued to serve,
according to UKB law, pending their replacement by duly elected officers.
In 1956, the Area Director challenged the seating of these officers, and a
subsequent election, but the UKB's main problem was the studious
indifference with which the Department treated Indian matters generally
during the heyday of Termination. It is a small miracle that the Band did
not simply give up the fight in those dreary days of the Eisenhower
follies. The Charter declared the Band eligible for programs and services,
bu the U. S. froze the monies. The U. S. weakened the organization, then
allowed its bureaucrats to declare the Band weak. This has been Federal
policy to this day. Termination never ended in Muskogee area. Chief Pickup
served as Chief of the UKB from 8 August 1956 to July 1957, when Tindle
again replaced Pickup. Chief Tindle was an ardent opponent of Keeler, who
wanted him removed as Principal Chief, and obtained a resolution from the
UKB Council on 9 July, demanding Keelers resignation as Chief of Cherokee
Nation. Keeler's resignation was denied in Washington, D. C. (as indicated
hereinelsewhere)(Leeds 1992: 57) Meanwhile both Chief Tindle and Chief
Pickup attended Cherokee Nation or Tribe meetings, the former representing
the UKB, and the latter as Chaplain!
Until the Commissioner of Indian Affairs intervened to defend the UKB,
Muskogee Area Director Fickinger refused to recognize the officers of the
UKB Council, and denied the validity of UKB resolutions or other
governmental actions, allegedly because the UKB Council would not bend to
his interpretation of their Charter and Constitution and By-laws. Indeed,
the situation deteriorated so badly that in a Letter dated 20 September
1958, Commissioner of Indian Affairs advised Paul L. Fickinger, Area
Director, Five Civilized Tribes Agency, Muskogee that contrary to
Fickinger's contention "that there is no such position as Chief of the
United Keetoowah Band of Cherokee Indians:"
We should like to call your attention to Article VI of the Tribal
Constitution of this Band which states that the officers of the Band
shall be a Chief, an Assistant Chief, a Secretary and a Treasurer."
Having effectively overruled the second ham-handed intervention of the Area
Director, the Commissioner enclosed a copy of the Band's Constitution and
By-laws. Secretarial approval authority thus prevented the effort of a
Muskogee Area Director to terminate the UKB administratively.
The next UKB Election occurred on 15 October 1960, twelve days after
secretarial approval authority over UKB business and governmental functions
terminated under the terms of the UKB Charter. In 1961, Keeler, Pickup and
Victory were all anxious to start a housing project for Cherokees. Paul
Niebell, Esq., the Cherokees' Washington Counsel, told Pierce that the
Solicitor's staff could not countenance the idea of a Cherokee National
Housing Authority run by Cherokee Nation (76 U. S. Stat. 776; Leeds 1992:
62). Pierce was furious. He told Keeler about a meeting he had had with
Superintendent Graham Holmes, Fickinger's replacement at Muskogee Area,
regarding a housing project. Holmes had balked, then suggested adroitly
that Pierce use the corporate powers of the UKB, since "the Cherokee Nation
had long since been stripped of police power by statute."(Leeds 1992: 63)
Pierce thought the UKB had never moved because of the sudden termination
clampdown that occurred just as the Band got organized. Pierce told Keeler
that the BIA just wanted to prevent the Principal Chief and Executive
Committee from managing and spending the residual funds from the per capita
distribution, and voiced his frustration at the Department's interpretation
of the residual powers of Cherokee Nation. In what has to be a grand
historical irony, considering the circumstances that led to the writing of
this present narrative, Pierce suggested that Keeler talk to Senator Robert
Kerr regarding the "arbitrary effort of the Bureau people in Washington, to
dissolve the Cherokee Nation without the consent of Congress."(Leeds
1992:65-66)
By 1962, as Indian policy was moving away from the Termination mode
everywhere else, Cherokee Nation was chaffing at the refusal of the BIA to
declare CNO eligible as UKB to do what it liked. The only alternative was
to use poor old UKB's status to serve expediency. On 19 October 1962, Marie
L. Wadley, Tribal Operations Officer, Muskogee Agency, BIA, wrote to Chief
Jim Pickup, asking clarification regarding the composition of the UKB
Council. In his reply Letter, 30 October 1962, UKB Chief/Rev. Jim Pickup
reported that the officers and Council were:
Chief, Rev. Jim Pickup
Clerk and Secretary, Rachel Quinton
Treasurer, Albert Christie
George Hummingbird, Jack Wolfe, Looney Henson, William Bryant, Albert
Christie, Chula Stepp, Sam Littledeer, and Richard Chucalate.
Wadley's question arose because the Agency had figured out that individual
Cherokees only would gain benefits from Indian programs targeted at
organized tribes, if the UKB provided access. When Pierce became nosy about
the interest the BIA suddenly was showing in the UKB, and asked Marie
Wadley of Tribal Operations in Muskogee about the Band's plan to have a new
election in 1963, Wadley was "intensely hostile and insulting." Pierce had
assumed that after such long neglect the Band had been effectively
terminated and no longer was a threat to the ambitions of CNO. He demanded
to know whether in dealing responsibly with UKB the BIA was trying to
"bypass" Cherokee Nation, and Wadley refreshed his memory on the point that
there were "grave doubts" whether the Cherokee Nation had abandoned tribal
relations, since the 1906 Act had "dissolved the Nation."(Leeds 1992: 63-
64) Pierce spent the next several years figuring out a way to keep tight
reins on the UKB, as will appear below. Pierce and Keeler wanted to control
any money that came into the area, because that was how to make
money.(Leeds 1992: 64)
Starting in 1962, with the aid of Area Director Virgil Harrington,
Chief Keeler orchestrated a plan to use the UKB to allow Cherokee Nation to
rebuild without having to go through Congress to reorganize by making the
UKB the sponsor of programs benefitting all the Cherokee people, starting
with the half-bloods as a target population. The plan eventually made it
possible for Cherokee Nation to engage in its own programs targeted
primarily at the lower blood quantum Cherokee descendants both inside and
outside Oklahoma. The efforts of the Principal Chiefs of Cherokee Nation of
Oklahoma to obtain significant changes in Section 4(b) of the UKB Charter,
or to accomplish the outright revocation of the UKB Charter as prescribed
in Section 8 by popular election or by Act of Congress, had their roots in
actions of Principal Chief Keeler in 1963, and in his frustration with the
refusal of the UKB to hand him carte blanche to use Cherokee trust assets
and other property and conduct Cherokee business at will on behalf of the
UKB.
The Muskogee Acting Area Director approached the Commissioner with a
plan to allow the UKB to use the 40 acre parcel adjacent to the Sequoyah
Indian School near Tahlequah as an industrial site on 1 May 1963.(Letter,
Muskogee Area Acting Director C. C. Marriss to Commissioner of Indian
Affairs) The Acting Area Director said:
In order to accomplish the desired results, it is requested that
if the authority exists, an order be obtained from the Secretary of
the Interior turning this land over to the Cherokee Tribe of Oklahoma.
Frank P. Becker and Robert J. Mills Associates, of New York City,
have expressed an interest in leasing a building to manufacture the
Kroyden golf ball. They have been in communication with the Branch of
Industrial Development for some time. The discussions, planning and
tentative negotiations for the use of a part of this land have reached
the point that some definite commitments will need to be made.
Establishing this industry on this site will provide employment for
Indians and may supply the incentive to attract additional industry to
this location.
The Cherokee Tribe of Oklahoma is not organized pursuant to the
provisions of the Act of June 26, 1936 (49 Stat. 1967), but has a
properly elected and qualified Executive Committee and Tribal Chief
who are empowered to act for the Tribe. The United Keetoowah Band of
Cherokee Indians in Oklahoma is organized pursuant to the above Act.
Elections are currently scheduled for the nomination of a new Council
and a new Board of Officers. It is planned that the Cherokee Tribe
will lease the land to this Band with the right to sublease the land
or any part thereof, and that the final contracts and arrangements for
financing will be made with the Band. [Emphasis added]
Here was the heart and soul of the Cherokee Nation development plan,
couched in a clear statement of Cherokee Nation's limited status. The UKB
would provide the legitimate authority to allow the unorganized Cherokee
Nation to function until Cherokee Nation could pull itself together. The
idea was one of constructive engagement, with the UKB clearly in the place
of the senior partner. The UKB held all the cards, as a tribal sovereign.
However, as an OIWA/IRA Tribe, the UKB had a limitation:
Section 4 (b) of the Band's Charter contains a ten-year
limitation on the duration of leases. The amendment of the Charter to
permit leasing for all purposes and durations authorized by law is
also being initiated.
Before any definite plans can be made, it is necessary that the
land be in tribal ownership. We therefore recommend that, as soon as
possible, an Order be obtained and published in the Federal Register
setting the [parcel] over in trust to the Cherokee Tribe of Oklahoma.
It is requested that legislation be sponsored to accomplish this
purpose.(Letter, 1 May 1963, Muskogee Area Acting Director C. C.
Marriss to Commissioner of Indian Affairs)
The development opportunity was intended for the UKB. The UKB had undetaken
specific efforts to establish an industrial park under OIWA and IRA as
early as 1942, and throughout the 1950s. Now that the opportunity had come
calling, the BIA and Principal Chief Keeler made sure the opportunity was
diverted to the benefit of Cherokee Nation by turning the industrial park
site over to Cherokee Nation, not the UKB, while relying on the UKB to
sponsor the enterprise as legitimate tribal sovereign. The only authority
for amending Section 4 (b) of the UKB Charter was in Section 8 of the
Charter, and that Section needed amending if the scheme was to succeed to
Cherokee Nation's advantage.
On 2 May 1963 UKB, a group convened in Tahlequah to consider
possiblity of introducing golf-ball industry proponents to UKB Council.
Oklahoma Department of Commerce and Industry, REA, Employment Assistance
officers, Tahlequah civic leaders, the Superintendent of Sequoyah School,
Vice-Chief C. C. Victory of Cherokee Tribe, and developers joined the UKB
Chief, Jim Pickup, and UKB Secretary, Rachel Quinton in the discussion.
Earl Boyd Pierce was beside himself with anxiety that Cherokee Nation would
get cut out of the deal. Along with him.
Perice told the UKB that they needed the concurrence of "Principal
Chief W. W. Keeler in a matter as important as borrowing money," and asked
the opinion of Everett Wood, Chief, BIA Washington Branch of Credit.
Everett retorted that the Band need no permission from Keeler to borrow
money, or doing anything else, for that matter. Keeler then told the UKB
that there should be no misunderstanding, for the UKB "did not represent
the Cherokee Tribe."(Leeds 1992: 71)
By mid-May 1963, Area Director Virgil Harrington had put in motion a
plan to alter the UKB governing documents. Interestingly, Mr. Pierce's
services were not required in this business. Pierce was furious, and did
all he could to terrify Chief Pickup about the implications for him and the
Band if they went through with the election, getting Pickup so worked up
that he would not make a move without consulting Pierce. Pickup had no idea
that Pierce was conspiring with Keeler to stop the election from affecting
their business plans.(Letter, 27 April 1963, Earl Boyd Pierce to W. W.
Keeler; Leeds 1992: 65-66)
Harrington couched his modest proposal to help with the election in
glowing language, and he intended to elaborate on the proposal at a meeting
on the occasion of the UKB election, 18 May 1963:
The Bureau of Indian Affairs is now in the process of assisting
the United Keetoowah Band of Cherokee Indians in bringing your
organization up to date in accordance with the Constitution.
This is being done in order that the Cherokee Indian will be in
a position to benefit from some of the programs now being planned for
Indian people by the Tribe and the Bureau, such as housing, industrial
development, education, loans, etc.
The United Keetoowah Band would be the organization through which
the Bureau can channel its programs to the Cherokee people. This
programming cannot be done without the active interest and a desire of
the Cherokee Indians to have a part in these development programs.
Your active interest in being a part of these programs can be shown by
your support of your organization. . . . . the United Keetoowah
Band.(See Memorandum, 7 May 1963, Area Director Virgil N. Harrington
to "Members of the United Keetoowah Band of Cherokee Indians.")
The UKB was proposed to be the vehicle for revitalizing Cherokee Nation of
Oklahoma:
There are two important matters facing the United Keetoowah Band that
require your serious consideration and support on May 18, 1963:
1. An election of officers; a Chief, Assistant Chief,
Secretary, and Treasurer of the United Keetoowah Band, that
will be held on Saturday, May 18, 1:00 p. m. on the
Courthouse lawn at Tahlequah, Oklahoma.
2. An Amendment to the Corporate Charter of the "Band" that
will extend the time limitation on leases to the
organization from ten years to a longer period of time.
We are asking you to come out to this important meeting and cast
your vote for new officers, and vote on this Amendment.(See
Memorandum, 7 May 1963, Area Director Virgil N. Harrington to "Members
of the United Keetoowah Band of Cherokee Indians.")
The reader will, of course, object, that a tribal election of officers is
one thing; a secretarially-supervised IRA election to amend the Corporate
Charter is an entirely other matter, and the Area Director here was
purporting to support the amendment of the UKB Charter outside of the
required process, as a tribal election. This part of the election required
secretarial approval and other procedural compliance, and the Area Director
had no authority to "waive" these requirements. He continued:
You are also urged to discuss this important meeting not only
with United Keetoowah Band members, but all Cherokees living in your
community, Cherokees of 1/2 or more Indian blood, and 21 years or
over, are eligible for membership and could take part in the May 18th
election.(See Memorandum, 7 May 1963, Area Director Virgil N.
Harrington to "Members of the United Keetoowah Band of Cherokee
Indians.")
This statement was somewhat misleading and inaccurate. First, the blood
quantum requirement for membership was 1/4, but by resolution the UKB had
decided to push up the requirements for new members, for a time. In their
26 April 1963 regular Council Meeting, the UKB had agreed to become the
vehicle for service delivery, not only to UKB members, but to all Cherokees
by blood, on behalf of Cherokee Nation. The enrollment eligibility and
voting eligibility rules set out in the Charter and Constitution strictly
required the Band to process applications and determine residency as well
as descendancy. Determinations of eligibility for running for tribal office
required tribal Election Committee processing. Presuming all these details
involved in preparing for a tribal election had been worked out and a
proper panel of candidates and voters' list had been prepared, in the event
of an IRA election the approval of the Secretary for an IRA election to
revise the Charter generally required months of preparation. The notice
requirements to register and educate voters about to reach the age of
majority, alone, the preparation of voters' information pamphlets, and the
preparation of absentee ballots, all required months even in the 1960s.
However, Harrington had good intentions; for he wanted to facilitate
the long-term leasing arrangements of the UKB. Section 4(b) of the UKB
Charter, on Limitation of Corporate Powers, provides:
No land or interest in land owned by the Band shall be leased for a
longer period than ten years, except that oil, gas, or mineral leases
may be made for longer periods when authorized.
The Muskogee Area Office was concerned that unless the maximum permitted
term for UKB leases was lengthened to fifty years or longer, the Cherokee
Nation business future might be put at a significant disadvantage. The
Cherokee Nation Executive Council suddenly took great interest in the
affairs of the UKB, because it was perceived that without the direct
involvement of the UKB, Cherokee Nation would be at the mercy of the State
of Oklahoma's Tax Commission, and would lose revenue at the sensitive
start-up phase of Cherokee enterprises. The Cherokee trust monies had to be
protected, as did the newly-acquired fee lands, which could be lost to
taxes. In a flyer, Notice and Press Release, 13 April 1963, from Vice-Chief
Victory, Cherokee Nation Executive Committee, to "all Cherokee Indians of
the 1/2 to full-blood," Victory solicited the support of the UKB's members
for the UKB, and encouraged their full participation in the UKB Federal
election to amend the UKB Charter to allow long-term leases. In those balmy
days of April 1963, Cherokee Nation knew there was a UKB, and that it was
very much alive:
ALL CHEROKEE INDIANS OF THE 1/2 TO FULL-BLOOD GROUP ARE REQUESTED TO
MEET ON THE OLD COURT HOUSE SQUARE IN TAHLEQUAH, OKLAHOMA, SATURDAY
MAY 18TH. PURPOSE, AN ORGANIZED EFFORT TO BRING TO EACH COMMUNITY
REPRESENTED, MODERN HOUSING, INDUSTRY, LOANS, COMMUNITY CENTERS AND
OTHER BENEFITS RECOMMENDED BY CHIEF W. W. KEELER'S COMMITTEE. THE
UNITED KEE-TOO-WAH BAND, ORGANIZED UNDER THE OKLAHOMA WELFARE ACT AND
IS RECOGNIZED BY THE UNITED STATES GOVERNMENT. IT IS NECESSARY AT THIS
TIME TO MODIFY THE CHARTER AND ELECT NEW OFFICERS BY VOTE OF THE
MEMBERSHIP. ALL CHEROKEES OVER AGE 21, BOTH MEN AND WOMEN, ARE
ELIGIBLE FOR MEMBERSHIP IN THE UNITED KEE-TOO-WAH BAND, AND TRIBAL AND
BUREAU OFFICIALS WILL BE ONE THE GROUNDS TO ASSIST YOU TO BECOME
MEMBERS. ELECTION OF OFFICERS; CHIEF, ASSISTANT CHIEF, SECRETARY, AND
TREASURER, WILL BE HELD SATURDAY MAY 18TH AT 1:00 P. M. YOU ARE URGED
TO BE PRESENT AND QUALIFY TO VOTE THIS MAY. MOST IMPORTANT EFFORT TO
SHARE ALL THE GOOD THINGS GOVERNMENT HAS TO OFFER.
The UKB Council adopted a Resolution on 17 April 1963 to file an
application for a U. S. loan of $400,000 to encourage the relocation of
industries (such as Becker-Mills of New York City), who had conditioned
their willingness to establish an Oklahoma plant employing Cherokee Indians
on the UKB's success in obtaining financing and buildings. There was no
question that the operation was entirely one of UKB sponsorship and
responsibility. The UKB, not Cherokee Nation, would carry on the
enterprise, but in consultation and cooperation with Chief Keeler and the
Executive Committee. The UKB sent out another press release concerning the
election on 22 April 1963. They were only sent out in English, with
predictable results.
The Tribal Operations Officer, Marie L. Wadley, recommended (see
Letter of 1 May 1963 to the UKB Councilmen and Precinct Chairmen) that:
it is proposed that this Section 4 (b) of the Charter be amended to
read . . . . .
"Land or interest land owned or controlled by the Band may be
leased for such purposes and period of time as authorized by
law."
Amendments to this Charter may be proposed by a majority vote of the
Council or by a petition signed by 30 percent of the adult members of
the Band and filed with the Secretary of the Interior, and if approved
by the Secretary then the proposed Amendment shall be submitted to a
referendum vote of all members of the Band, and shall be effective if
approved by a majority vote provided at least 30 percent of the
eligible voters shall vote.
Our point is just this: In order to get this 30 percent vote [it]
is going to require a lot of work in explaining the importance of this
Amendment and the importance of getting members out to vote on this
Amendment at the May 18, 1963 election of officers to be held at
Tahlequah . . . . We will need a 30 percent vote of the adult members
on this proposed Amendment on May 18, 1963.
Wadley urged a Council vote on the proposed amendment at once, in order to
get Secretarial approval prior to the election.
Harrington certainly ended his instructions with an accurate statement:
It is important to remember that the United Keetoowah Band is
organized under law and officially recognized by the United States
Government.(See Memorandum, 7 May 1963, Area Director Virgil N.
Harrington to "Members of the United Keetoowah Band of Cherokee
Indians;" emphasis added)
Fortunately for Pierce and Keeler, Pickup won a close race against Johnson
O'Field. Earl Crawford (later a member of the CNO Executive Committee) was
elected Vice-Chief, Rachel Quinton was re-elected Secretary, and Reverend
Bill Glory (later UKB Chief) became Treasurer. A funny thing happened on
the way to the bank, though: The required 30% of eligible UKB voters
refused to amend the Constitution. None of the regulatory requirements for
notice to voters and the like appear to have been followed, due to the
haste in assembling the election, and the result was predictable. Neither
Pierce nor Keeler cared that the UKB was sovereign and had property rights;
they only cared about the result. In later months, the UKB cancelled a
special election scheduled for August 1963. About ten years later, in order
to avoid having to deal with the UKB Council and its independent-minded
constituents, Chief Keeler created the Jelanuno Trust in cooperation with
some Tahlequah business leaders. Relying entirely on his authority as agent
of the Secretary of Interior and manager of Cherokee Nation assets, they
devised a long-term lease-purchase arrangement involving the land base at
the Tribal Complex which served their own purposes while evading the
complication of dealing with the UKB in any business matters. The UKB still
lost the deal; long-term leases also were covered in Section 7 of the
Charter. However, as it turned out, the indecent haste to amend the charter
was the result of high-pressure tactics from the developers. It turned out
that they had had some shady dealings in the past, and had presumed that it
would be easy to roll the UKB and the BIA, and even the Band's attorney,
because they were all a bunch of Rubes. The developers sought new horizons
in Michigan. Harrington encouraged the UKB to continue to pursue
development.
Why, in view of the glowing prospects Harrington outlined to the
Keetoowahs in his 7 May 1963 memo to the UKB, did the UKB have so much
difficulty getting tribal enterprises going, notwithstanding the expert
counsel of Earl Boyd Pierce, and the friendship of the Principal Chief of
Cherokee Nation? Perhaps one factor was there was just a little bit too
much "advice" and not quite enough support. On 14 May 1963, on the very eve
of the UKB election that was supposed to result in the amendment of the UKB
Charter to allow contracting of long-term leases that would prepare the UKB
to aid Cherokee Nation in joint ventures, Chief Jim Pickup offered to
retain Pierce as UKB attorney for payment, and on 15 May 1963, the contract
was signed, with Muskogee Agency's approval. The occasion was the need to
retain him formally to handle the golf ball factory deal. The same day, in
a memorandum marked "Personal and Confidential," Pierce wrote to Keeler in
1963, reassuring him:
I have finally gotten from Mr. Harrington [Virgil N. Harrington,
Muskogee Area Director] a definite promise that anything
(businesswise) the United Keetoowahs undertake, that before he
approves it for Washington, it will be submitted to you for your
perusal and views.(See Letter, 15 May 1963, Earl Boyd Pierce, "General
Counsel for Cherokee Nation," to Principal Chief W. W. Keeler)
The difficulty obtaining this "cooperation" stemmed largely from its
complete impropriety. Pierce continued:
It has required much effort, working in the only way I know how,
to obtain this commitment. In fact, the way some of this staff have
acted in the re-organization work of the Keetoowahs, and especially in
promoting the plans for the Golf Ball factory, I honestly sensed an
effort to by-pass you.
I am glad that I have been mistaken in this, and I want you to
know that Mr. Tom McSpadden is not involved at all. His attitude has
always been pleasant and solid, as far as you are concerned.(See
Letter, 15 May 1963, Earl Boyd Pierce, "General Counsel for Cherokee
Nation," to Principal Chief W. W. Keeler)
Of course, the Department staff were simply doing their job in not granting
any ultra vires authority to Keeler to intermeddle officiously in matters
concerning the UKB. None of this was any of Keeler's business. After 3
October 1960, the Secretary no longer had the approval authority over
Keetoowah business he had enjoyed the first ten years. Keeler certainly had
no such authority. Keeler certainly had no such authority. Pierce
continued:
I have also had some difficulty in keeping them from putting Mr.
Pickup on the shelf. He seems to now be in the running, and I believe
he will win this Saturday in the election. Much of the activity of the
Organization, it seems to me, has been unnecessary, but you know the
Bureau and some of the people connected with it. They seem to have
tried to pick up the ball and run with it, which is all right
ordinarily, but when they appear to be trying to bypass you, I did not
like it.(See Letter, 15 May 1963, Earl Boyd Pierce, "General Counsel
for Cherokee Nation," to Principal Chief W. W. Keeler)
Pierce believed that Pickup was a gentle lamb and always could be
controlled with an officious adjustment of the wool over his eyes. Pierce
was aware of his "potential" conflict of interest in his concurrent
representation of the UKB and Cherokee Nation in Docket 173-A, under his
new contract:
I agreed with Jim [Pickup] to do the legal work for the
Keetoowahs at no salary, and the contract which Mr. Harrington is
sending to Washington plainly provides that in case of a conflict with
my duties to the Cherokee Nation, that other arrangements will be made
and I can step out.(See Letter, 15 May 1963, Earl Boyd Pierce,
"General Counsel for Cherokee Nation," to Principal Chief W. W.
Keeler)
The most important element was keeping Jim Pickup largely out of the loop,
and informing Keeler of Pickup's every move so that no conflict ever would
appear to arise. It is not plausible that Pierce's later arrangements with
Glory were any different. Pierce continued:
I thought you should know that Mr. Harrington has convinced me
that he, in all matters involving industrial development or in any way
expending money in a business enterprise connnected with the Cherokee
program, you will give the final okay.(See Letter, 15 May 1963, Earl
Boyd Pierce, "General Counsel for Cherokee Nation," to Principal Chief
W. W. Keeler)
Naturally, with plans afoot to make the UKB the federally-recognized
vehicle for carrying on Cherokee enterprises, the relationship between
Pierce and Keeler had to be highly confidential, to rein in Pickup and the
UKB and to keep them under control.
In a Letter dated 15 October 1961, the Assistant Chief Tribal
Operations Officer Pennington answered Muskogee Area Director Virgil N.
Harrington on Harrington's 7 August 1961 inquiry as to the effect of
Section 6 of the UKB's Charter:
[W]e are of the opinion that to the extent the charter can proscribe
the powers of the Secretary of the Interior to review corporate acts,
it has terminated the requirement for Secretarial approval. Read
together, Sections 5 and 6 of the charter show clearly that it was the
intent of the framers of the document that the requirement for
Secretarial approval of the acts listed in Section 5 would end ten
years from the date the charter was ratified in the absence of action
by the Secretary to extend or shorten the period.
This finding had less profound but equally interesting implications.
Principal Chief Keeler, as the Secretary's official representative and
tribal sovereign of Cherokee Nation, had no supervisory duties remaining,
over the UKB, that the Secretary could delegate to Keeler as Principal
Chief, except where intervening statutes controlled. The Secretary retained
authority to intervene in the case of restrictions derived from "over-
riding Federal law," as in the case of questions of disposal of Federal
trust property of the Tribe or its members:
Of course, the charter provision would not affect Federal law
requiring Secretarial approval of the disposition of property of the
band, or individual members thereof, held in trust by the United
States. Therefore, if the Keetoowah Band owns any property with title
thereto held in trust by the United States, it may not be disposed of
pursuant to subsections (c), (d), and (e) of Section 5 without
Secretarial approval. This restriction, of course, comes not from the
charter but from over-riding Federal law. Our records do not disclose
whether the Keetoowah Band owns such restricted property . . . All the
records pertinent to property of the Keetowahs are in Muskogee.
Regarding your question as to whether you continue to have the
responsibility to supervise all activities of the band, you do to the
extent that any of those activities fall within the Federal statutes.
[Emphasis added]
The UKB retained the power to determine its own membership and make
decisions regarding it, to acquire land in trust, and the like, free of the
interference or officious intermeddling of the Secretary. As shown above,
Harrington knew by the end of 1962 that the Land Division had determined in
1937 that Cherokee Nation was incapable of reorganizing as such under the
OIWA and IRA, based on a determination by the Director of Lands [(MEMO TO
INDIAN ORGANIZATION, 25 October 1937, from Director of Lands (WDW) to
Daiker, Indian Organization (163618); see also Muskogee Area Office's note
to file on this particular Memorandum, "UKB Elections/ Review of
Authorities Relative to Powers of Cherokee Tribal Government/ Dec. 6, 1962/
Area Director."] Harrington knew that it would politically difficult to get
Congress to address this problem, and indeed it took a combination of
legislative and judicial action.
The Department's conclusions in 1964 as to the sovereign status and
capabilities of Cherokee Nation were very different from its conclusions
regarding the sovereign powers of Cherokee Nation. Of course, as of 1964,
the Department still could not view the Cherokee Nation or Tribe as being
formally organized under OIWA/IRA. The Executive Committee and Principal
Chief did not constitute an organized tribe. Records of Cherokee Nation
dating from this period show clearly that the Executive Committee and
Principal Chief understood there was no Cherokee Tribe government, except
for the UKB, in the sense of the OIWA and IRA. The "Report of Meeting of
Executive Committee of Cherokee Nation or Tribe of Oklahoma in Parlor K,
Severs Hotel, Muskogee, Oklahoma, Friday, March 13, 1964 at 2:30 P. M."
shows that on that day, the Executive Committee considered a proposal from
C. C. Victory outlining a number of recommendations, including the adoption
of a Constitution and Bylaws. Principal Chief W. W. Keeler appointed Jesse
Ballard as Chairman of a Committee, to be composed of Ballard and one or
two others as Ballard wished, to consider the C. C. Victory proposal and to
present a report to the next Executive Committee meeting. The Executive
Committee decided, "If the Committee agrees with C. C. Victory on
Constitution and Bylaws that the Committee prepare a proposed report draft
of Constitution bylaws for the consideration of Principal Chief Keeler and
the Executive Committee at the next meeting . . . on all points." Area
Director Virgil N. Harrington then asked whether this was to be "an
informal organization or organization for approval of the Secretary."
Harrington said, "If the tribe is thinking about a formal tribal
organization, there are certain formal rules to follow." In the general
discussion that followed, Keeler asked Ballard to investigate the
possibility of formal reorganization, and:
Mr. Keeler pointed out that there are some definite, already-
established procedures, frame work, under which it is possible to set
up a tribal organization. Area Director Harrington stated this will be
discussed with Mr. James Officer, Associate Commissioner who will be
in Muskogee on Monday. Mr. Keeler asked if there are any objections to
the motion to appointing such a Committee to explore these matters.
The Executive Committee approved.(Minutes, 13 March 1964, Meeting of
Executive Committee of Cherokee Nation or Tribe of Oklahoma, Friday)
The UKB knew about the unorganized status of the Cherokee Nation, because
the Chief of the UKB, Rev. Jim Pickup, was serving as Chaplain and
Interpreter to the Cherokee Nation Executive Committee as early as the
1950s, and presented both the invocation and benediction.
Finally, at this Cherokee Nation Executive Committee meeting, there
was an important discussion of a congressional proposal for a small
Cherokee Nation land acquisition:
Principal Chief Keeler discussed the 40 acres at Sequoyah Training
School covered by pending legislation (Mr. Keeler reviewed the case)
and stated it is desirable that the Executive Committee now get on the
record a resolution asking the Oklahoma Congressional delegation to
try to obtain legislation to accept this 40 acres with the
understanding that the Cherokee Tribe will be satisfied to pay a price
for this land on the basis of the Bureau of Indian Affairs' appraisal
-- whatever that may be. General discussion was held. Mr. Keeler
suggested that this Committee go on record favoring the kind of action
just suggested and that action not be transmitted to where it will get
into the hands of anyone until he (Mr. Keeler) makes further contacts
in this matter. Motion was made by Jesse Wofford that this be done.
Seconded by Mrs. Ballenger. Motion Carried. . . . Meeting adjourned
with benediction by Reverend Pickup.(Minutes, Meeting of Executive
Committee of Cherokee Nation or Tribe of Oklahoma, Friday, 13 March
1964)
The land acquisition at issue received congressional authorization in the
Act of August 20, 1964, P. L. 88-461 (78 Stat. 559), conveying forty acres
of Federal land "to the Cherokee Tribe of Oklahoma, not subject to any
exemption from taxation, or restrictions on use, management or disposition,
because of Indian ownership." Doubtless, the refusal of the UKB to alter
their Charter persuaded Pierce to lobby to get the land for Cherokee Nation
instead of for the UKB, which is what he did.
At their 17 September 1992 meeting, the Band approved a resolution to
authorize a loan application from the Indian Credit Revolving Fund of up to
$300,000 so that they could attract a Tulsa-based egg-producing firm with
impeccable credentials. The BIA failed to check out the real dollar need,
and the deal fell through because the loan was too small. Rack up another
one for the BIA.(Leeds 1992: 77)
In 1964, Virgil N. Harrington, Area Director, concluded that:
This act [Act of August 20, 1964, P. L. 88-461 (78 Stat. 559),
conveying forty acres of Federal land "to the Cherokee Tribe of
Oklahoma, not subject to any exemption from taxation, or restrictions
on use, management or disposition, because of Indian ownership"]
states this land shall not be subject to any exemption from taxations,
or restrictions on use, management or disposition, because of Indian
ownership.
We interpret this to mean that the Secretary of the Interior or
his authorized representative [e.g., the Principal Chief of Cherokee
Nation] has no jurisdiction or function relative to any action taken
by the Cherokee Tribe as to any disposition or use of the
land.(Letter, 12 November 1964, Virgil N. Harrington, Area Director,
to Commissioner of Indian Affairs)
This land was described as the "N2 SE4 NE4 and that part of the NE4 NE4
lying South of U. S. Highway No. 62, Section 20, Township 16 North, Range
22 East, . . . conveyed to the Cherokee Tribe of Oklahoma." The UKB
proposed to lease this land from the Cherokee Tribe, in connection with the
UKB's proposed industrial and economic development program. The Minutes of
the Cherokee Nation or Tribe of 23 August 1964 contained the following
discussion:
Mr. Keeler said that Mr. [Earl Boyd] Pierce had told him that the bill
conveying 40 acres of land near Tahlequah to the Cherokee Tribe has
been passed by the Congress and signed by the President. He stated
that this bill ran into trouble in the Senate; that Senator Anderson
reported that there was considerable pressure on the Congress not to
let property that could be managed by others become non-taxable and
therefore the land would not be tax exempt. Mr. Keeler stated that
there has been a request from the United Keetoowah Band to lease this
land and now it is necessary to decide how this land title should be
carried; that perhaps it should be carried as the Cherokee Nation of
Oklahoma. Mr. Keeler asked Chief Jim Pickup of the United Keetoowah
Band the purpose for which they intend to use this land. Mr. Pickup
replied that it would be used for an industrial site; that they would
put some industrial building there and lease it out to a company.
Mention was made by Mr. Keeler that the Sequoyah Indian Weavers
Association might expand and put in an operation on that site. Mr.
Victory said that he could see no opposition to the use of this land
by the United Keetoowah Band as long as they did not put a limitation
on the use of this land.
Mr. Harrington stated that his office is ready and willing to
assist the United Keetoowahs in any possible way to take over the
Sequoyah Indian Weavers Association, including the lending of money to
purchase this organization.
Other plans for Keetoowah business enterprises in cooperation with Cherokee
Nation, or alone, including a nursing home business and a flag-making
plant, in which the Cherokee flag was produced. In 1968, Principal Chief
Keeler informed Chief William Glory:
The Executive Committee of the Cherokee Nation or Tribe of Oklahoma in
session on April 6, 1968 at the Bell Community School voted to accept
the flag presented by you on this day as the official flag of the
Cherokee Nation, and recommended it to me for use.
In reviewing this matter as covered by the minutes of the meeting
of the Committee on October 16-17, 1967, this flag is to be placed in
the United Keetoowah Room of the Cherokee Restaurant.
May I express appreciation to you for your work in designing this
flag, and pursuing the matter of having it made. I know we will all be
proud to see it occupy a special place in the United Keetoowah Room
and that the design is significant to the history of the
Cherokees.(Letter, 8 May 1968, W. W. Keeler to Mr. William Glory)
Other correspondence of W. W. Keeler (Letter, 12 May 1969, W. W. Keeler to
Mrs. Ohoma B. Annette Lancaater) attests his knowledge that the Cherokee
flag was the creation of the UKB, that the UKB held the rights to making
the flag, that Mrs. William C. Glory and other women of the UKB created the
original model which hung on display at the CNO Restaurant:
Since this is being handled entirely by the Keetoowah Band, I am
referring your letter to Mr. William C. Glory, Chief of the United
Keetoowahs.
Then Chief Jim Pickup requested formally that Principal Chief W. W.
Keeler entertain the possibility of leasing the forty acres of land near
the training school, upon the instructions of the UKB Council at their
regular 6 October 1964 Council meeting.(Letter, 7 October 1964, Chief/Rev.
Jim Pickup to W. W. Keeler) Again, the UKB was offering to do business in
cooperation with Cherokee Nation, and for the benefit of all Cherokee
Nation.
The Cherokee Tribe still had the power to receive, control and dispose
of land; and had Congress implied as much, in the land donation itself. The
Department understood, however, that even the implied power that the
Executive Committee of Cherokee Nation, or its officers, could exert once
the Cherokee Tribe acquired the property was limited by Acts of Congress,
as long as the Cherokee Nation remained unorganized, according to the
Department's findings. "Cherokee Nation" or "Tribe" still had no functional
government at the time, except for the residual Principal Chief. The
Commissioner had not approved the 1948 Resolution that would have
officially sanctioned the Executive Committee. "Cherokee Nation" remained
only a voluntary association with the capability of becoming organized.
Area Director Virgil N. Harrington proposed a solution that required the
approval of the 1948 CNO resolutions purporting to create and empower the
Executive Committee:
The Cherokee Tribe is not organized in any form of corporate entity.
However, on July 30, 1948, following authority of your office and
proper public notice, a Convention of duly enrolled Cherokees, by
blood, in Oklahoma, was held in Tahlequah. At this Convention, the
Cherokee Tribe adopted certain motions and Resolutions.
Copies of Resolution No. 2, adopted at this 1948 Convention which
sets out the purposes of the Convention, were transmitted to your
office, along with Resolutions 1 and 5, adopted at this Convention,
with our letter dated September 16, 1948 (copies herewith). Your
letter, dated November 9, 1948 (copy herewith) advises. . . . "it does
not appear that it will be necessary for this office to take action on
the Resolutions at this time."
Copies of Resolution No. 3, which directed and authorized the
Chairman of the Convention to appoint a permanent Standing Executive
Committee of the nine members empowered to exercise during recess any
and all powers that this or any other assembly of duly enrolled
Cherokees by blood in Oklahoma could rightfully do in regular
assembled convention, were submitted to your office on August 23,
1948, in connection with the contract for employment of attorneys by
the Cherokee Tribe to prosecute claims against the United
States.(Letter, 12 November 1964, Virgil N. Harrington, Area Director,
to Commissioner of Indian Affairs)
Harrington cited these actions of establishing the Executive Committee,
along with the Act of August 20, 1964, P. L. 88-461 (78 Stat. 559), in
reaching the following finding:
We consider those tribal actions were adequate, with the approval of
these Resolutions by the Secretary of his duly authorized
representative, to constitute the Executive Committee as the
representative body of the Cherokee Nation or Tribe of Oklahoma in all
Cherokee tribal matters. This opinion was further enhanced by the
recognition given by the Indian Claims Commission to the powers of the
Cherokee Executive Committee in connection with the Cherokee Claims
Docket 173 (see Additional Findings of Fact, 14 September 1961).
Harrington's suggestion still was consistent with the 25 October 1937
Director of Lands' Cherokee Nation decision. The extent of the residual
powers of the appointed Principal Chiefs of CNO after 1906 was strictly
defined. An important illustration of the limitations is apparent in the
Principal Chief's narrow authority under the Act of April 26, 1906 (34
Stat. 167) to "execute deeds and leases of restricted Cherokee tribal
lands." As Harrington indicated, "this authority may not extend to this
unrestricted 40 acre tract," namely the land conveyed in the Act of August
20, 1964. Harrington recommended belated administrative approval of the
Cherokee Tribe's resolutions of 1940 on the powers of the Executive
Committee, to authorize the Executive Committee and the Principal Chief of
the Cherokee Tribe to commence the leasehold relationship whereby UKB would
lease the land from Cherokee Tribe:
the United Keetoowah Band of Cherokee Indians in Oklahoma, organized
under the Oklahoma Welfare Act, proposes to lease this land, as
lessee, from the Cherokee Tribe, in connection with its proposed
industrial and economic development program. In this connection, the
Bureau, we believe has a duty to determine if such a lease would be
valid. The question to be resolved is the authority of the Principal
Chief, or Executive Committee of the Cherokee Tribe, or both, to
execute a valid lease of the 40 acre tract on behalf of the Cherokee
Tribe. . . .
One way of assuring a valid lease from the Tribe would be by
approval of Resolutions Nos. 2 and 3, giving the needed authority to
the Executive Committee and the Principal Chief of the Cherokee Tribe.
We recommend this action so that the Cherokee program can be begun
without delay. [See Letter, 12 November 1964, to Commissioner of
Indian Affairs]
The Oklahoma Indian Welfare Act, codified at 25 U. S. C. Section 501,
provides for the acquisition, in trust, of lands for OIWA recognized
tribes, whether inside or outside reservation areas. As a non-OIWA tribe,
the provision did not apply to Cherokee Nation or Tribe, and could not be
made to do so without special congressional action; and that action did not
take place here.
Notwithstanding Harrington's recommendation, the Department apparently
never approved the land lease agreement between the UKB and Cherokee Tribe.
It is clear, however, that in the Department's perception, the entities
were distinct; and, that the UKB could exercise inherent governmental
powers (described in the UKB Charter) that the Cherokee Nation or Tribe,
under Principal Chief W. W. Keeler, could exercise only to the extent
Cherokee Nation did not need to organize under OIWA/IRA to exercise such
powers.
The UKB believed that they should help determine the use of the
residual judgment funds, in order to preserve their culture and society,
and passed the following resolution:
Whereas, the United Keetoowah Band of Cherokee Indains, as a part of
its program for promoting the welfare of the Cherokee people, wishes
to preserve and promote the arts and crafts, and traditions of the
Cherokees, and Whereas, in planning with the Principal Chief ofthe
Cherokee Nation or Tribe of Oklahoma, for the use of these Cherokee
residual funds derived from the judgment awarded to the Cherokee
Nation or Tribe in Docket 173, the United Keetoowah Band is interested
in the establishment of a Cherokee Council House which will include
and Arts and Crafts wholesale-retail center.(UKB Council Meeting
Minutes, 6 April 1965. UKB Resolution regarding use of Cherokee
Judgment Fund.)
Virgil Harrington assured Chief Pickup that the Executive Committee had
unuanimously accepted the Band's resolution "as part of the plans for
programming future use of the Cherokee Residual Funds." Here was a
concurring resolution at its best.(Letter, 28 July 1965, Muskogee Area
Director Virgil Harrington to Chief Jim Pickup, UKB; Leeds 1992: 79)
Further action on any land lease plan involving the 40 acres of CNO
land, even on Harrington's recommendation, required secretarial
authorization. The alternative would have been the reorganization of the
Cherokee Nation, action that would have required the cooperation of the
UKB, the BIA, and possibly Congress. The "leasing incident" also suggests
that despite the claims of Chief Keeler and Earl Boyd Pierce, the UKB had
inherent governmental powers, recognized by Congress and the Secretary,
which Keeler and Pierce either did not clearly understood at the time of
UKB organization, or which they opposed for their own reasons. As to
Cherokee Nation's governmental authority, Earl Boyd Pierce knew that:
The sole source of legal power is vested in the Principal Chief under
Federal law, and for over fifty years Congress has shown no
disposition to change this situation, even if it was desired.(See
Letter, 7 April 1967, Earl Boyd Pierce, "General Counsel, Cherokee
Nation," to Dr. George E. Fay, Assistant Professor, Department of
Anthropology, Colorado State College, Greeley, Colorado)
Chief Keeler cultivated the friendship of Chief Pickup, through Earl Boyd
Pierce, and was able to keep Chief Pickup very content with progress as
Chief Keeler approved it.
Keeler, Pickup, the Executive Committee, and Harrington worked out an
eleven point program to use the $2 million remaining in the judgment funds,
in accord with the Distribution Act, which said:
Tribal funds that revert to the Tribe pursuant to this Act, including
interest and income therefrom may be advanced or expended for any
purpose that is authorized by the Principal Chief of the Cheorkee
Nation and approved by the Secretary of the Interior.[76 U. S. Stat.
776, Sec. 3(b); Leeds 1992: 80)
When Keeler pushed to use half the money for the Cherokee Drama and Shrine
in collaboration with the Cherokee Historical Society, a strange
controversy ensued pitting Keeler and Pierce against fullbloods, with the
threat that AIM and other opponents of mainstreaming policies might stir up
trouble in the region.(Leeds 1992: 81-82) The fullbloods started pushing
for the right to elect a Chief and officers again, among many other things,
including per-capita distribution of the remining balance. The hiring of
Colonel Martin Hagerstrand to head up the cultural project caused a
firestorm. The Colonel, a non-Indian, (who now is head of the Five
Civilized Tribes Museum in Muskogee), was paid initially with part of the
escheated payments.(Leeds 1992: 84-85)
Finally, things got so hot in 1966 over such things as that hiring
that Principal Chief Keeler entreated Chief Jim Pickup to help him out at
a special meeting on 15 January 1966 designed to calm the waters of
militancy. Keeler apologized there for having been so high-handed in making
policy and business decisions that distanced him from the people, and
pleaded good intentions. Pickup spoke in his support, and the assembly gave
a vote of confidence. Keeler then created a Public Relations Association to
catch flak and suggestions from the fullbloods. Earl Crawford, Vice-Chief
of the UKB, was President, Rev. Bill Glory was Treasurer, and Chief Jim
Pickup was delegate without portfolio.(Leeds 1992: 86) C. C. Victory
suggested that Crosslin Smith, younger son of Stokes Smith, then a BIA
Guidance and Counseling employee at a school in Arizona, would be useful in
balancing the Keetoowahs with whom the Stokes Smith Nighthawks had fierce
differences. Harrington hired Crosslin Smith as Tribal Resources Officer at
Tahlequah Agency "to protect the tribal organization."(Leeds 1992: 87)
Today, Crosslin Smith is next in line to succeed his older brother William
Lee Smith as Chief at Stokes Smith's Grounds, and of course strongly
opposes the UKB. Pickup told Keeler he had heard that Victory was going to
resign and turn things over to Crosslin, who hated the UKB, adding, "we do
not want some of the Smiths ruling over us."(Leeds 1992: 87) Keeler thought
Crosslin was just the ticket to keep Pickup and the fullbloods off balance.
Victory feared what would happen if the Keetoowahs actually took
control, despite orders from Virgil Harrington at the BIA demanding that
the UKB have supervisory authority.(Leeds 1992: 89) Keeler therefore set up
an advisory group to "help" the Band run the projects on the forty acres:
a restaurant, an office of Chief Pickup, a gift shop, and a gas station.
Keeler stated publicly to the UKB:
I would like to leave this in your minds and certainly in connection
with what you are going to discuss -- the 40 acre tract -- since the
Keetoowah Organization are going to run that someone from the
Keetoowah should be sent back here to get this kind of
training.(Minutes, Meeting of the Executive Committee of the Cherokee
Tribe, 18 January 1967, NARA; Leeds 1992: 90)
Chief Jim Pickup's joy at the developing relationship with Cherokee
Nation and Chief Keeler knew no bounds. He visited "his" attorney, Earl
Boyd Pierce, at his Fort Gibson office, and dictated a cordial letter of
thanks, regarding Keeler's leadership in starting the "new buildings on the
40 acres near Sequoyah [Training School] given to the Cherokee Tribe by the
Government." Pickup was delighted that fullblood Keetoowahs were employed
in building projects at the site, and were able to feed their families.
Pickup said:
While Earl is writing this letter for me, I am sitting at this desk
asking him what to say, and I am putting my name on this letter
because I know it tells you the truth about how I feel, and I know it
is the same with all of my people in my organization.(See Letter, 18
January 1967, Rev. Jim Pickup, UKB Chief, to Chief Keeler)
Here, there is specific mention of the particular small goals and dreams
Chief Pickup already was realizing, including having a real UKB tribal
office:
I remember that all of this work started because you knew I needed and
wanted a little office to keep my records and my papers safely and so
I could have a meeting place for my organization. I thank you for
seeing to it that my office will be there in this wonderful building
on the Tribe's own property. This is as it should be and, of course,
you know that as the Principal Chief you will carry a key for as
Chaplain of your committee, I certainly want you and your committee to
hold the first meeting officially and at that time you can turn over
to me a second key for my office space if this is all right with
you.(See Letter, 18 January 1967, Rev. Jim Pickup, UKB Chief, to Chief
Keeler)
Pickup offered his suggestions about having Keetoowah Cherokees involved in
running the tribal businesses, including the restaurant, the gas station,
and the Arts and Crafts center. Pickup agreed to management of the Arts and
Crafts program by the Cherokee Tribe rather than the United Keetoowah Band.
He promised to read the letter at the next UKB Council meeting on 24
January 1967, adding:
I think I will try to get a resolution of my board at this meeting
endorsing in full this letter which I have asked Earl to write to you
for my signature. This is the way I stand today, as I have always
stood behind you and this is the way I will always stand in the
future. God Bless You.(See Letter, 18 January 1967, Rev. Jim Pickup,
UKB Chief, to Chief Keeler; in Muskogee Area Office files)
The truth is that the letter was Pierce's way of having the last laugh on
the fullbloods. Pierce and Keeler had cozened Chief Pickup into giving away
the UKB's business opportunity for the promise of participation. Pickup
never had the authorization of the UKB Council in this matter, and they
went ballistic over Pickup's behavior. Earl Crawfors informed Keeler that
the UKB Council was "deeply hurt."(Letter, UKB Vice-Chief Earl Crawford to
Principal Chief W. W. Keeler)
The letter appeared in the record at the Cherokee Nation Executive
Committee meeting on 20-21 January 1967 (see Minutes). Chief Pickup died on
17 May 1967, and Earl Crawford succeeded him until the election in
September of Rev. William Glory (1967-1979) to complete the unfinished
term. The Cherokee tribal newspaper recalled that under Pickup's
leadership, the UKB:
supported programs through the use of Cherokee residual funds to
improve the social, economic, and educational standards of the
Cherokees and improve the social, economic, and educational standards
of the Cherokees and supported and cooperated with the U. S. Indian
Office, the Chief of the Cherokees, and the Executive Committee of the
Cherokees in their efforts to attain this goal.("Pages of the Past:
Necrology: The Reverend Jim Pickup/ 1884-1967," Cherokee Nation News,
23 July 1968)
In a Letter of 25 May 1967, Dr. E. S. Rabeau, Assistant Surgeon General,
Director, Division of Indian Health eulogized Chief Pickup in an open
letter to Chief Keeler:
The passing of Rev. Jim Pickup, an outstanding Cherokee leader and
minister, creates great sorrow among the Public Health Service,
Division of Indian Health Staff. As Director, Division of Health
Service, I am proud to have known him and to have worked with him in
recent months.
Our health staff has encountered the influences of his leadership
on the Cherokee Executive Board, the Inter-Tribal Council of the Five
Civilized Tribes, President of the United Keetoowah Society and the
daily occurrences of his religious activities. He has contributed to
the Indian Health program through each of these activities. More than
this, Rev. Pickup motivated the Cherokee people to participate in such
health improvement projects as the sanitation facilities and clinical
improvement programs. His contributions will live in the lives of many
people throughout the State and country.
Judge N. B. Johnson said at his death, "One of God's noblemen, Jim Pickup
possessed high character and vision for the spiritual uplift of his people.
He worked tirelessly and steadily in this service. In his passing, the
Cherokee people have lost a great leader." If Pickup did not believe until
the end in the good intentions of Pierce and Chief Keeler, he never let
anyone know, and the Cherokee National Holiday that year included a
ceremony conducted by the UKB in the Restaurant of the Cherokees,
installing the plaque and portrait of Jim Pickup, along with the unveiling
of the Cherokee Nation flag and the awarding of honorary membership in the
UKB to certain attending dignitaries.("Cherokees Plan Salute to Reverend
Jim Pickup," Cherokee Nation News, 3 September 1968)
In September 1967, the Band elected Chief William C. Glory, who served
for about twelve years after Chief Pickup. William C. Glory, a Methodist
lay minister, served in WWII and the Korean Conflict, and worked for the
Postal Service from 1946 to 1961. From 1963 to his death Glory was involved
in UKB politics and in the development of Cherokee Nation programs.("Glory
Retires from Cherokee Housing Authority Commission," Cherokee Nation News,
7 June 1974) The Band also elected Bud Welch as Vice-Chief, Rachel Quinton
as Secretary, and Frank Hornet as Treasurer. Glory beat Earl Crawford and
Sam Chaudoin in a squeaker.(Cherokee Nation Newsletter, 14 September 1967)
Sam Chaudoin was a member of the "radical" Five County Cherokee
Association, a Baptist minister, and enrolled as Sampson Smith. Many of the
Executive Committee, including Earl Crawford, feared that if Chaudoin/Smith
took over, they would dissolve the Committee and pull down Keeler. The
election committee deliberately listed him as "Smith" instead of Chaudoin,
though he had gone by Chaudoin for 60 years, and he was defeated, because
no one knew who he was.(Leeds 1992: 94) Other members of the Five County
group, Hiner Doublehead and Steve Wilson, also charged irregularities, and
eventually the new Council was under fire from all sides, charged with
being a rubber stamp for the BIA and Keeler.(Leeds 1992: 96) Crawford
responded that many of those challenging the election were not even UKB
members, that Chaudoin never even had attended a UKB meeting prior to
running, and otherwise put the challenge to rest.(Leeds 1992: 97)
The Five County Cherokees, under Finis Smith, became the Original
Cheorkee County Organization late in 1967.(Wahrhaftig, Albert L. and
Lukens, Jane, "New Militants or Resurrected State? The Five County
Northeastern Oklahoma Cherokee Organization," The Cherokee Nation: a
Troubled History, ed. Duane King (Knoxville: U. of Tenn. Press, 1979), p.
233.) By 1968, the OCCO would be putting inexorable pressure on the UKB to
change.
In a Cherokee Nation Executive Committee nine months after Chief
Pickup's death, Chief William Glory reported on the proposed purchase of a
bronze plaque properly identifying the United Keetoowah Band which was
approved in the meeting of the Executive Committee of the Cherokee Tribe on
16-17 October 1967, as a memorial for the late UKB Chief Jim Pickup. The
Preamble of the Constitution and the names of each current Council member
were to appear on this plaque, for a total cost of $500. He had permission
from the UKB Council to request an advance or loan from the Executive
Committee for the plaque. He also reported that the UKB was in the process
of creating a flag, and said he hoped it would be ready to display at the
next Executive Committee meeting, to make it official. He planned to
present the first flag as a gift (handmade by Mrs. William C. Glory, Mrs.
Victor Robards, Mrs. Beulah Frisby and Mrs. Josephine Luttrell, with
artwork by David M. Stephens) to Principal Chief Keeler. Keeler personally
applauded the idea, recommended authorization, awarded all rights to the
UKB, and the Committee approved the advance of a loan for the
memorial.(Minutes, 24 February 1968, Meeting of the Cherokee Nation
Executive Committee; "The Executive Committee referred the hanging of the
United Keetoowah Plaque in the Restaurant of the Cherokees back to the
Council of the United Keetoowah Band for further action," according to
"Executive Committee Approves Budget, Discusses Allotments," Cherokee
Nation News, 2 July 1968; "Cherokees Produce First Tribal Flag," Tulsa
Daily World, 12 December 1968) Chief Keeler wrote to Chief Glory at the
time:
It is not my intent to make any other authorization for production of
an official flag, which means that if the program can be carried out
properly, your group will have the exclusive right to produce and sell
this flag.("Cherokees Produce First Tribal Flag," Tulsa Daily World,
12 December 1968)
As usual, Chief Keeler was the sole authority regarding affairs of Cherokee
Nation or tribe, regardless of the actions of any of his committees. The
Cherokee flag was designed by Chief William C. Glory and Vice-Chief Bud
Welch of the UKB after months of interviews in Oklahoma and Cherokee, North
Carolina, and research in the Smithsonian Institute, the archives of
Alabama, Archives of Oklahoma, and at the library at Northeastern State
College. The flag was raised on 6 September 1969 on the Cherokee Nation
Industrial site, as the first Cherokee flag. The design elements symbolized
the character and traditions of the Cherokee people:
THE CHEROKEE FLAG AND THE STORY IT REPRESENTS
The dark red or brown center: Cherokee Redman.
The seven point star: The seven clans of the tribe.
Wreath of Oakleaves: Encircles the Star symbolizing a brave
spirit of a brave and manly people.
Multi-color: Area a symbol of a colorful history,
accomplishments and experiences of the Cherokee people.
White field: Represents peace and union with Indian people and
Oklahoma where the Cherokee Ship of State charted a new course in
government.
The Cherokee Flag: Symbolizes a united Cherokee people pledging
devotion to highest ideals in their education, Industrial and
religious life as a Christian people.
Designed and made by the United Keetoowah Band of Cherokee
Indians in Oklahoma.
Adopted and officialized, April 6, 1968 by the Executive
Committee of the Cherokee Nation or tribe of Oklahoma.("THE CHEROKEE
FLAG AND THE STORY IT REPRESENTS," Cherokee Nation News, 9 September
1969)
The UKB had a temporary flag factory at Chief/Rev. Glory's church, with
proceeds to go into the UKB treasury to pay expenses and provide jobs for
UKB members. Why Glory thought making a CNO flag, rather than a UKB, was a
good idea, no one ever understood. Later CNO administrations have ignored
Keeler's agreement.
The UKB continued to interact with the Cherokee Nation Executive
Committee, to confer with the latter and with Principal Chief Keeler, to
appear on the Committee's agendas, and to inform the latter of their
concerns and projects, as at the 11 May 1968 Committee Meeting:
Item 9. United Keetoowah
Chief Glory assured the Executive Committee that the United Keetoowah
organization will be most happy to work with any organized tribal
group in any manner -- all that is necessary is for his group to be
advised. He told of a short visit to Mr. Keeler's office in
Bartlesville which he, Frank Hornett, and Bud Welch made recently for
the purpose of informing Chief Keeler the desires and hopes of the
United Keetoowah group. He stated he agrees wholeheartedly with the
statements made by Chief Keeler today concerning the Arts and Crafts
Shop.(Minutes, 11 May 1968, Meeting of the Cherokee Nation Executive
Committee)
Anna Gritts Kilpatrick, fullblood Cherokee, Secretary of the UKB, daughter
of Levi Gritts, and scholar of Cherokee literature, editor of the Cherokee
News, was Keeler's candidate to run the shop, and the Committee already had
approved a resolution nominating her for hiring. Glory expressed concern
that:
perhaps Business Manager [Ralph] Keen is being burdened with too many
responsibilities and expressed his feeling that Mr. Keen is a man with
a great deal of ability and great potential and said that he is doing
a good job. He reviewed the history of the United Keetoowah Band which
was organized in 1950, and assured the group this organization stands
ready to serve all Cherokee people to better their life. He reported
that they meet once a month and they try to hold their meetings out in
the communities. He extended a special invitation to community
representatives to attend these meetings. He told Chief Keeler he
favors the action that has been taken concerning Mrs. Anna Gritts
Kilpatrick. He emphasized he wants people to know that they are not
the Keetoowah Society, which organization, he said, went out of
existence in 1950, although they do carry on some of their thinking
and their traditions with them because they are helpful. He said they
are a corporation which belongs to the Cherokees. He told about plans
for dedication of the United Keetoowah Room in the Restaurant of the
Cherokees which is tentatively scheduled for May 31.(Minutes, 11 May
1968, Meeting of the Cherokee Nation Executive Committee)
The UKB sponsored an insurance program for the Cantrell Insurance Company
during the 1960s, and in two years, Chief Glory signed up over 200
Keetoowahs. Social services and insurance were great interests of the UKB.
During the Cherokee National Holiday that year, the UKB presented an
official report on their role in the development of Cherokee Nation or
Tribe programs.("Cherokee Holiday Progresses," Cherokee Nation News, 3
September 1968)
At a meeting of the Cherokee Nation Executive Committee on 29 October
1968, Cherokee Nation's right to acquire and dispose of tribal property
arose again. UKB representatives attended. Chief Keeler discussed a proosed
bill to provide for sale of tribal lands to the Five Civilized Tribes. The
bill proposed to allow the tribes or chiefs the right to sell property, or
to buy and hold land in trust status. The OIWA was the only authority for
Cherokee Nation to acquire land, limited to agriculture and grazing.
Cherokee Nation wanted to be able to transfer and exchange land, or put
land into trust to which the tribe held title. The UKB governing documents,
of course, prevented the ready conveyance of title from the Band, so the
involvement of the UKB in these transactions posed the problem that it
would be virtually impossible for the land to be sold once the Band held an
interest in it beyond leasehold. As had been the case in 1963, when the BIA
tried to get the UKB to change its Charter to allow for long-term leases,
business dealings between the UKB and Cherokee Nation, continued to be
problematic because the UKB was a federally-recognized tribe.("Executive
Committee Discusses Land Bill," Cherokee Nation News, 29 October 1968)
At a meeting of the Cherokee Nation Executive Committee on 29 October
1968, Cherokee Nation's delivery of social services programs (as opposed to
BIA delivery of services) was the main issue:
Considerable discussion followed. It was pointed out that perhaps this
is duplication -- that the Bureau of Indian Affairs has skilled people
who are doing the same kind of work; that perhaps the Cherokee Tribe
is not working closely enough with the Bureau to get these things
done; that certainly the Bureau has people who are trained and skilled
in motivating the people; that the Bureau has been there for a long
long time. It was urged that the Cherokee Tribe work more closely with
the Bureau in their Employment Assistance man, and follow-up by the
Social Worker.(Minutes, 29 October 1968, Meeting of the Cherokee
Nation Executive Committee)
Within a few years, P. L. 93-638 would open the way to tribal takeover to
functions and services the BIA had provided; yet, the arguments in the 29
October 1968 meeting showed some reticence even about competing with the
BIA. Still, there was some concern about assuring that the primary
beneficiaries, high-blood-quantum individuals, received appropriate
services, by crossing the language barrier:
Explanation was made that the time has come to show the Cherokee
people that the Tribe means business; that the Tribe wants to do
whatever is necessary in order to make the programs work. The Cherokee
Nation Office has only one person on the staff who speaks Cherokee.
More emphasis needs to be placed or the fact that many of the Cherokee
people prefer to speak Cherokee. This is one place where if the Tribe
can't prove itself that their people can work and are willing to work,
everything it has done so far is really in vain. This is one place
where the Tribe can start. If this isn't done, the Tribe could stand
the chance of losing 400 jobs.(Minutes, 29 October 1968, Meeting of
the Cherokee Nation Executive Committee)
Rev. William C. Glory of the UKB spoke next:
Mr. Glory reviewed briefly the creation of the United Keetoowah
organization. He reviewed some of the things the Band has been doing
in recent months among the Cherokee-speaking families. He stated,
"What I am trying to get over to you is that you have this service
that you are talking about. We have it available for you, if you want
to use it. We have made this service available time and time again to
the Cherokee people. We go on our own expense. We feel like everybody
is needed, and we are willing to give it. You have a legal entity at
your disposal with an organization that can help you if you will
utilize it. If you know you can utilize our service, we stand ready to
go all the way with you. . . . What is the matter with our people? We
have people who have the ability that you are looking for -- 45 to 65
years old. . . . I include the United Keetoowah Band when I say that.
They are willing to serve and are ready to serve. I am willing to
work up something to keep unity, to unite our people so that we can be
strong, because right now we have more potential than we have ever had
in our history. I think we have hit upon some good ideas. We have some
good leaders, we stand ready to serve in any way we can.(Minutes, 29
October 1968, Meeting of the Cherokee Nation Executive Committee)
Principal Chief Keeler suggested that the Tribe "take advantage of
everybody's help, including the Keetoowah group." He said, "We have a
specific problem now. We haven't figured out a way we can solve it. It will
take the help of many many people to get these jobs done. We have a
responsibility to get a job done."(Minutes, 29 October 1968, of Meeting of
the Cherokee Nation Executive Committee) The Deputy Area Director remarked:
If there is any question at all of how we feel, don't feel this is any
intrusion at all. Where the Tribe can and wants to handle their own
affairs, this is what we would like to see. This doesn't mean we would
be reducing our program for the Cherokees. We'll go ahead in just the
same manner. I see no complications at all.(Minutes, 29 October 1968,
of Meeting of the Cherokee Nation Executive Committee)
Keeler responded:
What we are saying is we have a problem right now. We are not getting
all things done that we should. If we are passing up a chance to see
400 Cherokees employed, I believe the Bureau would agree that it is
very possible that part of this counseling job for the Cherokees needs
to be done by Cherokees themselves. The Bureau can't step into that
exactly. I don't say they can't. Two or three times I wanted to be
sure that Ralph [Keen] understood that he is to work completely with
the Bureau. There have been times when he wasn't sure of that. The
Tribe is to take advantage of everything we can from the Bureau.
Jesse Ballard suggested:
Mr. Glory, I think you can do some good work by going out among the
Keetoowahs and full bloods and telling them what we are doing. Try to
get them to some to these meetings. Point out to them this is their
project, as well as anybody's. That will be most helpful. This man we
are employing, after all, all these things amounts to good
relations.(Minutes, 29 October 1968, of Meeting of the Cherokee Nation
Executive Committee)
Nothing in this discussion suggested that the UKB had abandoned tribal
relations voluntarily, or that members of the UKB generally had rushed to
abandoned their UKB affiliation to join the Cherokee Nation. On the
contrary, the minutes suggests that members of the UKB felt left out, not
only out of the corridors of receiving services, but of giving services
which both the BIA and the CNO were supposed to extend to UKB members and
Cherokee Nation registrees alike. In 1967 and 1968, the UKB had plans in
the works for furnishing Federal offices and schools with hand-made
furniture, thereby supplying employment for Keetoowahs and other Cherokees.
The idea of a Cherokee merchandizing outlet was very attractive, and in the
Executive Committee, the Cherokee Tribe organized a Cherokee Tribal
Enterprise for these purposes. Chief Glory and his Council tried to get the
UKB into the loop. Everyone involved in these transactions and meetings
realized that the UKB members still composed an identifiable community, and
that it was not the same as the Cherokee mainstream.
Meetings of the UKB in which the Council transacted business of
interest to Cherokees in general continued to receive notice in the
Cherokee Nation News, while Anna Gritts Kilpatrick remained Editor.("United
Keetowahs Schedule Meeting," Cherokee Nation News, 25 March 1969") Chief
William Glory continued to attend community meetings open to Cherokees in
general, as a featured speaker and presenter, in tandem with Cherokee
Nation or Tribe representatives in various districts.("Bell Community
Meeting Held," Cherokee Nation News, 11 March 1969; "17th Cherokee National
Holiday Planned Saturday," Cherokee Nation News, 2 September 1969) A few
examples in addition to those provided above indicate the continuing
existence of the UKB, and the interactions of the UKB with the Principal
Chiefs and Executive Committee of Cherokee Nation. Minutes of Cherokee
Nation Executive Committee, and articles in the Cherokee Nation News,
Cherokee Voices and Cherokee Advocate dating from the 1950s, 1960s, 1970s
and even the 1980s freely admit that the UKB continued to be a federally-
recognized tribal entity. In their 1968 Christmas issue, the Cherokee
Nation News proudly reprinted a listing from the BIA and the 1960 Federal
census of all the federally-recognized tribes in Oklahoma, including the
UKB.("Okla. Indian Tribes Listed/Taken from Action Line, Tulsa World,"
Cherokee Nation News, 24 December 1968. The UKB backed the Cherokee
Restaurant, pledging to encourage members to support this and other tribal
enterprises employing Cherokees; of course, Bud Welch, Vice-Chief of the
UKB, a bailbondsman from Pryor who knew nothing of the restaurant business,
was named Manager of the Restaurant.("United Keetoowahs Pledge Support to
Cherokee Restaurant," Cherokee Nation News, 11 February 1969; Leeds 1992:
106)
Although the Nighthawk Keetoowahs generally were perceived as the
stronghold for Keetoowah tradition, it was Chief William Glory who
approached Representative Ed Edmondson of Muskogee for aid in obtaining
eagle feathers for ceremonial costumes and ritual purposes.("Keetoowahs on
Waiting List for Eagle Feathers," Cherokee Nation News, 7 January 1969)
When the UKB Council decided to establish a memorial fund for Rev. Jim
Pickup in a meeting at the Cherokee County Court House at Tahlequah,
Kilpatrick acted as custodian of the fund ("Cherokees to Honor Late
Keetoowah Chief," Cherokee Nation News, 18 February 1969) The UKB hosted
several successful "wild onion and eggs" fundraisers to aid needy Cherokees
in the name of Rev. Jim Pickup, on 11 March and 15 April 1969, bringing
about 300 guests to the Restaurant of the Cherokees, including Principal
Chief W. W. Keeler.("United Keetoowah Dinner Is Sell-Out, Another Planned,"
Cherokee Nation News, 18 March 1969; "A Bigger and Better Dinner Set,"
Cherokee Nation News, 1 April 1969; "Keetoowah Dinner Highlighted by
Necklace Raffle, Another Planned," Cherokee Nation News, 22 April 1969)
Rev. William Glory, Chief of the UKB, was on the Cherokee Housing
Authority from 1963 to 1974.("Glory Retires from Cherokee Housing Authority
Commission," Cherokee Nation News, 7 June 1974) In summer of 1969, at a
meeting of the Cherokee Nation or Tribe Executive Committee, Earl Boyd
Pierce, Chairman of the Provisional Authority, presented names of the Board
of Directors for Cherokee Nation Industries, Inc. These included the late
Jackson McLain, who was a member of the UKB Council at his death in January
1993. The plan was for Cherokee Nation to take over full management of
Cherokee Nation Industries, Inc., and to add other instruments to those
already being built at the plant. This was to be a Cherokee Nation
enterprise, ultimately exclusive of the UKB ownership or control (Minutes,
14 June 1969, of Meeting of the Cherokee Nation Executive Committee)
The affairs of the UKB continued to be important to Cherokee Nation as
long as Chief Keeler found the UKB leaders pliant and useful to his
purposes (even in ways that were purely symbolic for most people, as in the
case of the creation of the flag for Cherokee Nation). In February 1969,
Keeler prodded the UKB members of the Community Representatives Board to
denounce the OCCO.(Leeds 1992: 106) The political and practical necessity
of the UKB's existence for the continued success of CNO's economic
development was obvious, because the UKB had organized status. Indeed,
members of the UKB Council became angry at the direction Glory was taking
the Band, and at least one resigned in protest. Rachel Quinton resigned
from the Council, and wrote to Keeler that:
No. 1. It was a lot of work but nothing gained.
No. 2. There was not any place to have meetings.
No. 3. What had been planned to get things to help the Cherokees
had already matured.(Letter, 16 September 1969, Rachel Quinton to
Chief William Glory, Letter, 13 October 1969, Rachel Quinton to
Principal Chief W. W. Keeler)
However, such developments did little to ruffle the waters in public ways
for some time. The Cherokee Nation newspaper carried notices of such events
as UKB elections, as in the case of the 16 January 1970 election, without
mentioning internal strife and outrage at Glory's apparently submissive
attitude toward Principal Chief Keeler.("Keetoowah Band Election Set,"
Cherokee Nation News, 27 December 1969) Even Quinton rejoined the Council
in 1973.
However, even Glory did not remain entirely passive. At some point in
1969, Glory and Keeler had a disagreement. Glory called John Hair, a member
of the Council, and asked his help in moving out of his office at the
complex. That was the end of the UKB's claim to participate in the use of
the complex. Glory attempted to regain space at the 5 September 1969
Executive Committee meeting, and Keeler responded (using the royal "We") at
the 8 February 1970 meeting:
as there were so many gropus of Cheorkees, it would not be possible to
give office space to each representative group. . . . it would not
seem fair for us to provide space for one group . . . because it would
like we are playing favorites.
The UKB had no response. There could be none.
The disposition of the Cherokee Outlet claims, and possible appeal in
Docket 173-A, before the Indian Claims Commission, were on the agenda of
the Cherokee Nation Executive Committee at a special meeting on 8 April
1970, the day following a special meeting of the UKB Council to discuss the
same issue. Because this watershed meeting covered a variety of important
issues and revealed a great deal about the relative positions of the UKB
and Principal Chief of Cherokee Nation and his advisory boards, it is
appropriate to cite extensively. The meeting clarifies the sources of
governmental authority in Cherokee Nation at the time. The Principal Chief,
as presidential appointee, had sole real authority, and acted entirely at
will upon the counsel of his purely advisory Community Representative Board
and Executive Committee. Under Section 28 of the 1906 Five Civilized Tribes
Act, Congress expressly preserved the existence of rudimentary tribal
governments until Congress provided otherwise, emphasizing that the office
of Principal Chief would be essentially that of an appointed officer of the
President, running the Tribe under direct Federal authority:
[Provided] . . . That the tribal existence and present tribal
governments of the . . . [Five Civilized Tribes] or nations are hereby
continued in full force and effect for all purposes authorized by law,
until otherwise provided by law, but the tribal council or legislature
in any of said tribes or nations shall not be in session for a longer
period than thirty days in one year: Provided, That no act,
ordinance, or resolution (except resolutions of adjournment) of the
tribal council or legislature of any of said tribes or nations shall
be of any validity until approved by the President of the United
States: Provided further, That no contract involving the payment or
expenditure of any money or affecting any property belonging to any of
said tribes or nations made by them or any of them or by any officer
thereof, shall be of any validity until approved by the President of
the United States;
and recall also the Act of June 28, 1898, 30 Stat. 495, the Curtis Act.
Section 26 had stipulated:
That on and after the passage of this Act the laws of the various
tribes or nations of Indians shall not be enforced at law or in equity
by the courts of the United States in the Indian Territory.
The Community Representatives and Executive Committee were merely sounding
boards against whom he bounced ideas, so that he could test the political
winds "without having to go all over Cherokee Nation" to get that
information.(Minutes, 8 April 1970, of Meeting of the Cherokee Nation
Executive Committee)
While the UKB was never subject to Keeler's authority, no Chief ever
contradicted his counsel, until Chief Pickup died. Keeler and Pierce
pretended that they, too, composed an advisory body serving him at his
pleasure. As a federally-recognized tribe, this impression was false.
However, practically speaking, the only way for the UKB to produce a
different result would have been to force a division of assets, and to make
a separate filing in claims litigation. They trusted "their" claims
attorney, Earl Boyd Pierce, to serve them properly, and hence passively
complied with his recommendations from 1950 to the 1970s. As it was, the
Executive Committee had made a very cozy fee arrangement with the
attorneys, cozy enough to assure that Pierce would do everything possible
to support the Principal Chief against any possible challenge of authority.
Indeed, the Claims Court was not happy with the fees that Pierce and other
attorneys were expecting as their cut of the Cherokee Claims award. A 25
October 1946 decision of the American Bar Association, cited in a
dissenting opinion of the Commission in the attorneys fees part of the
Cherokee Claims case, complained of a possible violation of Canon 42. The
understanding the UKB and Cherokee Nation was that the claims attorneys
would get a standard 10% flat fee, absorbing all costs and expenses; but
the arrangement violated certain requirements of the ethics code, because
the result was a payment "substantially larger than any fee previously
allowed by the Indian Claims Commission." The determination and allowance
of attorney fees of such magnitude should have followed the regular
procedure before the Commission under terms of the existing contract. The
Court of Claims' conclusion was intended as no negative reflection on the
claims attorneys or the Executive Committee, but they disapproved the
proposed contract.("Claims Court," Cherokee Nation News, 1 April 1970)
The proceedings of the 8 April 1970 Cherokee Nation Executive
Committee meeting show again that the UKB still existed, still convened
council meetings and conducted regular and special business, attempted to
protect the independent interests of their constituents, were specially
accountable to their constituents; that they had to abide by their own
laws; and that they were not "subject" to the authority of Principal Chief
Keeler. Keeler remained subject to the authority of the Secretary and
President. The Secretary was subject to the authority of the UKB Charter,
Constitution and By-laws, and as shown above, lost his "approval" authority
over UKB affairs on 3 October 1950. Therefore, Keeler was not and could not
have been the final authority over UKB. He "controlled" the UKB only
through his own influence and the influence of Earl Boyd Pierce, and by the
Keetoowahs' own assent. Keeler and Pierce were treated as their respected
and trusted advisers. It was not the UKB's fault that Keeler and Pierce,
and later Swimmer, made inappropriate inferences about their sovereign
status.
The participants included Chief William Glory (still angry that Keeler
had evicted him from his little office at the tribal industrial park), Vice
Chief Bud Welch, and Councilmen Albert Christie and Frank Hornett of the
UKB Council. During the discussion, Counsel for Cherokee Nation and the
UKB, Earl Boyd Pierce, recounted the history of the Executive Committee:
In the July 1948, Cherokee Convention at Tahlequah, an Executive
Committee consisting of eleven members was elected, two members of
which are still serving: C. C. Victory and Principal Chief Keeler.
The functions, at the time the committee was elected, committed to
their hands by the Convention, the only governing body we had, were
namely, to employ attorneys, to advise and assist the Principal Chief
on "all" Cherokee matters, to protect the general welfare of all
Cherokees in Oklahoma, and during recess to exercise any and all
powers that this or any other assembly of duly enrolled Cherokees by
blood in Oklahoma could rightfully do in regular convention assembled.
Congress, in creating the Indian Claims Commission in 1946, authorized
all Indian Nations, Tribes, Bands and identifiable groups of American
Indians to employ lawyers. Our Tribe acting through the Chief and
Executive Committee did that. We signed a contract which permitted the
Executive Committee, the Secretary of the Interior, the Community
Representatives have been elected and other Cherokee leaders have been
added to the Governing body and may now express their views on what to
do. We trust that before expressing their views they become informed
of the nature and history of our litigation. The Claims Attorneys
employed at the convention in the beginning stated they would not be
guilty of passing the hat among our full bloods for money to go to
Washington to prosecute our cases. We have kept our word.(Minutes, 8
April 1970, Meeting of the Cherokee Nation Executive Committee)
The Secretary never had approved the Resolutions of the 1948 Convention.
The Department only condoned the actions of appointed Principal Chief
Milam, who created the Executive Committee at the Commissioner's
suggestion, to expedite Cherokee business, including the claims cases. The
sole real Cherokee "government," even in 1970, was the Secretary's
appointed Principal Chief. Pierce neglected to mention, and no one
remembered, that he had started out as the UKB's attorney. Pierce had been
added at their request to the panel of attorneys representing Cherokees in
claims. Indeed, he had come on board only due to the UKB's demand. The
Indian Service had disqualified him to serve as a claims attorney due to
his recent employment with the Indian Service.
Pierce requested action from the Executive Committee, particularly
direction in how to proceed in the settlement or appeal of Docket 173-A. In
the course of proposing a resolution of some sort authorizing the attorneys
to appeal, Pierce characterized the organization and functions of the
Committee, the Community Representatives, and Principal Chief Keeler.
Pierce set out several alternatives, suggesting in sum that no real
authority existed except the Principal Chief:
it could be a formal resolution. . . . Chief Keeler, himself, is the
Chief, C. C. Victory is the Chairman of the Executive Committee. I
probably would word it this way, in substance: A resolution, by and
with the advice and consent of the Community Representatives and the
Executive Committee, go on record today that it is the consensus of
the Executive Committee that the matter of whether or not an appeal is
lodged in Docket 173-A is hereby referred to Principal Chief Keeler
for his sole decision, with the understanding that whatever he does,
you will back him to the limit.(Minutes, 8 April 1970, Meeting of the
Cherokee Nation Executive Committee)
In other words, the "Resolution" Pierce proposed was a statement of total
acquiescence to the reality as Pierce perceived it, that Principal Chief
Keeler was the administrator and sole authority over Cherokee legal and
property interests. Keeler remained an appointee and functionary of the
Secretary of the Department of the Interior. Pierce continued, "Or you
might want to call Chief Keeler and find out whether or not he wants you to
just do it as the Executive Committee."(Minutes, 8 April 1970, Meeting of
the Cherokee Nation Executive Committee) The alternative was simply to ask
direction from Keeler so that he could tell them what he intended to do
anyway. Pierce advised:
For the time being this is going to have to be secret, we can't
publish it in the newspaper. You could recommend that no appeal be
taken, if that is your wish, after you discuss it, and then you send
it for Chief Keeler's approval, as the Principal Chief. If should be
secret for this reason, I say secret, it is just between us, anything
that's between us is not necessarily secret, but you heard me say the
word "danger" while ago. . . . If you decide not to appeal and it gets
out to the opposition in Washington, the Attorney General's office is
our opposition, in this lawsuit. We love him as a man, and respect him
as an official, but we are fighting him, he's trying to protect the
Treasury. If it gets out that you're not going to appeal, he'll say
well let's just set the hair on those Cherokees, let's appeal, and
that will hold it up for two years. Our present thinking is that if we
keep it to ourselves with the authority to not appeal, let's hold it
and nobody knows it but you, Chief Keeler, Paul Niebell, and George
Norvell and me. Then we'll decide when to let them know whether we are
going to appeal or not, and that will be the last minute when the 90
day bar drops, the 4th day of May. . . . We are ready to Cross Appeal
if they do.(Minutes, 8 April 1970, Meeting of the Cherokee Nation
Executive Committee)
Pierce then took the opportunity to ask whether full-blood community
representatives Jim Wolfe and Tom Christie understood what he was saying.
The conclusion was that they did not, even when Mrs. Wolfe offered to
explain it as best she could later, in Cherokee.
At this point, Chief Glory commented on the obvious: Why were the
Cherokees giving the U. S. such a good deal? He clearly was not moved by
the threat that the U. S., if they learned of the Cherokees' decision, by
appeal just to be ornery. Keetoowahs have long believed that the
relationships among Pierce, Keeler, and the U. S. government were entirely
too cozy, and that perhaps these men had not demonstrated the full loyalty
they owed to the UKB. Chief Glory asked, diplomatically:
If whatever we decide here today. . . . . there is a possibility that
someone is going to come up with the idea why didn't we get more money
for this, why didn't we go for more money because it was stated here
today by our attorney, he is not satisfied with it. When we came here,
before I read that letter, I had the same feeling. I am not a lawyer,
but personally my feeling was exactly that, and I still haven't got an
answer to it yet. But in going along with my thinking, there may be a
small minority against it, that question I mentioned, why didn't we go
for more when we had a chance?(Minutes, 8 April 1970, Meeting of the
Cherokee Nation Executive Committee)
Pierce took offense, asking petulantly, "Don't you know that question came
up while ago when I very emotionally gave my feelings? . . . our chances of
getting better results on an appeal are very remote."(Minutes, 8 April
1970, Meeting of the Cherokee Nation Executive Committee) He strongly
defended Paul Niebell, and said:
I don't think a Cherokee ought to go out of this door against what
this committee does, unless you go out with misinformation. If you are
informed about what it is all about, I think you will go along with
the committee, but if you're not informed, and you have a question,
you have a right to ask your question.(Minutes, 8 April 1970, Meeting
of the Cherokee Nation Executive Committee)
The point was that the final decision was going to lie with the Chief, and
the entire point of the meeting was to do rumor control while the Chief
determined what he obviously was going to do anyway: accept the judgment
without appeal. A committee recommendation accepting his authority was all
Keeler needed, certainly not any purported binding action or approval from
them. At that, Pierce "asked everybody who understands what the committee
is about to recommend . . . . there will be no appeal, that they stop now
and accept the money rather than risk it in another court, to hold up their
hands."(Minutes, 8 April 1970, Meeting of the Cherokee Nation Executive
Committee) Tom Christie and Jim Wolfe did not understand, and Pierce
promised to explain the whole thing to them if they cared to visit him
later at his Fort Gibson office; of course, by that time, Keeler would
already have acted on the Committee's recommendation.
Pierce said he wanted the committee to have all the information and
reassurance they needed, in order "to advise the Chief the safest route to
follow." He continued:
I don't want this committee misadvised. We have an organization now,
and you are part of it. This is to prevent someone from going out
carrying misinformation. . . . No, on this whole matter we could shake
hands and agree with what the Executive Committee does today.(Minutes,
8 April 1970, Meeting of the Cherokee Nation Executive Committee)
Clearly, the capacity of the Committee was entirely advisory.
Hiner Doublehead offered a thought about the role of the United
Keetoowah Band and Chief Glory in this matter:
Mr. Glory's people, who elected him and who elected the Community
Representatives expect us to make decisions. We should go back and
give them the correct information. We may lose money paying for this
appeal. It may drag on for several years. Let your conscience be your
guide.(Minutes, 8 April 1970, Meeting of the Cherokee Nation Executive
Committee; emphasis added)
At this point, clearly there was the concern that the UKB would have the
opportunity to give its informed consent, that the UKB be allowed to offer
a concurring resolution through its Chief. The UKB had the power and duty
to protect its share of any proceeds from the settlement. The UKB was not
in the same position as the class of some unenrolled Cherokee freedmen
descendants in Kansas who had intervened unsuccessfully to get a share of
the award.
Pierce sidestepped the recommendation by asking Frank Sokolik, Tribal
Operations Officer of the BIA, whether he agreed that "this matter had been
fully discussed with the people present," and of course, Sokolik concurred.
Then he checked to see that the ruling did not include the value of the
minerals, and Pierce said, "They didn't give us one penny for the minerals.
At the time of the transaction, neither party knew of the existence of the
minerals." Having concluded that the matter had been fully explained to the
Community Representatives and the Executive Committee, Hiner Doublehead
explained to the Representatives that there was only one vote from each
community, and if there were two representatives present, they delegated
one to vote.
C. C. Victory moved that Mr. Pierce "officially convene the Committee
consisting of the Chairman of the Executive Committee, Chairman of the
Community Representatives, and that our attorneys here draft a proper
resolution of communication to Principal Chief Keeler expressing the
unanimous sentiment of this organization and vote on it."(Minutes of
Meeting of the Cherokee Nation Executive Committee, 8 April 1970) The
Motion read:
it is the unanimous consensus of the Committee and the Elected
Representatives that an appeal be waived in Docket # 173-A, Indian
Claims Commission, Washington, D. C. and in the event of an appeal by
the Government, it is the desire of the Executive Committee and the
Community Representatives that Chief Keeler authorize the Claims
Attorneys to file a cross appeal.(Minutes, 8 April 1970, Meeting of
the Cherokee Nation Executive Committee)
Pierce waited until the resolution had passed, then said:
there is no reason why we should draft it right at this minute. Mr.
Ballard and I with Mr. Victory would like to take a little time to
prepare a suitable form of that resolution for the signatures of Bob
Stopp, Charley Victory and our Executive Secretary and then a blank
line for the consideration and approval of W. W. Keeler, Principal
Chief. We want time to take a look at it and draft proper
language.(Minutes, 8 April 1970, Meeting of the Cherokee Nation
Executive Committee)
Keeler and Pierce wanted consent by silence from the Cherokees, not
necessarily informed consent, with the understanding that their consent or
advice had no real bearing on Keeler's action. Pierce's earlier promise to
Christie and Wolfe to explain the discussion at his Fort Gibson law office,
to allow them to choose intelligently, already was forgotten. At this
point, Chief Glory intervened, and pointed out that the omission of the UKB
from the final determination was significant:
You are forgetting the Chairman of the United Keetoowah Band. We voted
on that last night at our special meeting.(Minutes, 8 April 1970,
Meeting of the Cherokee Nation Executive Committee)
The fact is that the consent of the UKB was as important as Keeler's. Mr.
Pierce offered:
Honestly, there is no law that would debar Mr. Glory's organization
from approving what's done here. Do you know of anything that would be
wrong about it?(Minutes, 8 April 1970, Meeting of the Cherokee Nation
Executive Committee)
Pierce ignored what he knew: That the UKB governing documents, which had
the force of Federal law, stated clearly that the UKB had the affirmative
duty and authority to protect their claims. Pierce apparently took a
"deistic" sort of view of the UKB: it had existed, it had exercised its
power, and then it had stood back to allow its creation, its empowerment of
its attorneys working with the Principal Chief of Cherokee Nation, to run
the creation. Pierce opined:
All it will do, it will help this way. . . . and incidentally if this
works out all rights and I think it will, it may save a lot of work on
the part of the Community Representatives, the Executive Committee,
this office staff here and Chief Keeler in avoiding what was done the
other time. The other time, you old timers will remember, Mr. Keeler
and this Executive Committee, periodically [met] two or three nights
a week or days every week. . . . . went all over the Cherokee Nation
explaining what we had done. At that time we didn't have the Elected
Community Representatives and at that time the Executive Committee
didn't feel, they hadn't had the experience that we have had in the
other cases, that they ought to do this until they had talked with
people like you people have been doing, but, now you have your
representatives and this is a representative government and that's
what this amounts to.(Minutes, 8 April 1970, Meeting of the Cherokee
Nation Executive Committee; emphasis added)
"This . . . government" did not "amount" to "representative government."The
primary function of "Community Representatives" was to purvey or conceal
information vital to Cherokee interests, and to offer the appearance that
the Cherokee government existed and was representative, in order to counter
militant demands from the fullbloods, like the members of the OCCO. Pierce
went a step further, offered a veiled threat that the Representatives were
accountable, and could be held to blame:
If you do wrong in advising the Chief, then the people can take you
out of office at the next election.(Minutes, 8 April 1970, Meeting of
the Cherokee Nation Executive Committee)
The purposes of a "Representative" including serving as the target for
blame in case the Chief's decisions proved embarrassing, or produced
undesirable results. These "Representatives" served at the pleasure of the
Chief.
Chief Glory asked that the United Keetoowah Band be mentioned in the
resolution. Tom Morton offered, "Can't you draft this resolution and add
this to it?" When the resolution was reread, it had the unanimous vote of
those present by a show of hands. The motion was carried by a unanimous
vote of the Executive Committee, Community Representatives and the United
Keetoowah Band.(Minutes, 8 April 1970, Meeting of the Cherokee Nation
Executive Committee)
Pierce announced at this meeting that his law office at Fort Gibson
now housed the Cherokee Library, Archives and Interim Repository. UKB
records were there, and on Pierce's death, were lost to the UKB.(Minutes,
8 April 1970, Meeting of the Cherokee Nation Executive Committee)
At the conclusion of the meeting, Hiner Doublehead:
officially invited the United Keetoowah Band and their Councilmen to
come to the monthly meetings of the Community Representatives, held
the first Thursday of each month, in the Conference Room of the
Cherokee Tribal Office.(Minutes, 8 April 1970, Meeting of the Cherokee
Nation Executive Committee)
There is no question that the Cherokee Nation used the status of the UKB to
obtain services and conduct its business. While the UKB cooperated and
allowed Chief Keeler to do as he liked, with their help, there was peace.
Chief Glory attended meetings of the Executive Committee, and appeared on
the agenda as a UKB representative, acting under express resolution of the
UKB Council limited to particular issues.(See, for example, agenda of
Committee Meeting in "Cherokee Executive Committee, Tribal Leaders to Hold
Meeting on June 27," Cherokee Nation News, 16 June 1970)

THE BELLMON BILL AND THE "REVIVAL" OF CHEROKEE NATION, 1970 - 1976

In 1970, Glory's increasingly wary Tribal Council demanded through a
formal UKB resolution that they each have seats on the Executive Committee,
with the implied threat that they were ready to shift for themselves with
or without Keeler's cooperation. They thought they had nothing to lose,
since Keeler had intervened to frustrate most enterprises the UKB had
attempted since the 1950s. They also were aware that Pierce and BIA
personnel were in the practice of routinely communicating news of all their
confidential plans and other internal decisions to Keeler and Swimmer so
that they could maneuver roadblocks into the path of their efforts. The UKB
knew that Keeler was using the UKB's status as an OIWA/IRA tribe to get
funds and services without the inconvenience of reorganizing CNO under OIWA
and IRA. However, amid growing controversy and frustration among members
of the UKB and the Tribal Council, Glory and Keeler kept up the appearances
of a cordial alliance.
On 31 January 1970, the Executive Committee of Cherokee Nation
responded to a resolution and request from the UKB Council for
representation on the Executive Committee for the purposes of dealing with
common Cherokee Tribe issues, such as property and claims. Cherokee Nation
wanted to appease the militancy arising among the fullbloods. Hiner
Doublehead, Austin Ketcher and Henry Doublehead all became members of the
Election Community Representatives Board. Pierce eventually used the UKB
representatives to orchestrate a denunciation of OCCO. The Resolution in
the Minutes read as follows:
The Executive Committee of the Cherokee Nation or Tribe of Oklahoma,
in session on January 31, 1970 in the Conference Room of the Cherokee
Tribal Office, voted to extend to Elected Community Representatives
and other organized Cherokee groups voting privileges in the
deliberations of this body on Cherokee tribal matters.(Minutes of the
Executive Committee of Cherokee Nation of Tribe, 8 February 1969;
Leeds 1992: 108)
According to a finding by Marie Wadley, Executive Secretary of Cherokee
Nation, "Certainly, the Elected Community Representatives, the Chief of the
United Keetoowah Band and the heads of other organized Cherokee tribal
groups are privileged to present recommendations to the Executive Committee
and to vote upon matters to be considered by the Executive Committee."(See
Letter, 16 December 1970, from Marie L. Wadley, Executive Secretary,
Cherokee Nation or Tribe, to John Masters, Southwest City, Missouri) Note
that the UKB did not extend a similar invitation on the part of non-
Keetoowahs to participate in UKB deliberations; the sole interest of the
UKB was attending to the common business the UKB and CNO had by virtue of
unresolved common property claims, while the Principal Chief retained
authority as agent of the Secretary for the purposes of administering
Cherokee Nation or Tribe property. The entitles remained distinct.
Nothing in the record demonstrates that the action of Cherokee Nation
or Tribe Executive Committee, in seating UKB Chief, Rev. William Glory, on
that Committee, had any more significance for either of the UKB or of
Cherokee Nation or Tribe than the 1 May 1949 appointment of Chief Jim
Pickup to the position of Trustee of Cherokee tribal assets.
The issue of the right of UKB to participate in enjoyment and
management of Cherokee trust properties smoldered for years, and in 1971,
Keeler created two new Boards of Trustees for the management of Cherokee
tribal lands arose to include UKB members and spokespersons, including Bud
Welch of Pryor, Oklahoma. Trustees had monthly meetings at Bull Hollow,
Stillwell, Jay, Tahlequah and the Miami Agency, starting with the lands at
Yonkers and Kenwood that came up for lease 31 December 1970.("Board of
Trustees Negotiate Leases for Cherokee Tribal Land," Cherokee Nation News,
24 March 1970; "Cherokee Tribal and U. S. Government Lands for Lease,"
Cherokee Nation News, 19 December 1970; "Special Meeting of Cherokee Tribal
Officials and Leaders Is Held," Cherokee Nation News, 19 January 1971)
The Cherokee Nation claims the Dawes Cherokee enrollees as
automatically eligible as a class for Cherokee Nation registration, and
hence "membership," and yet CNO did not have current roll, or an open roll,
in 1950, 1970, or 1990. For example, the question of reopening of Cherokee
Nation's rolls was matter for concern in Cherokee Nation in 1970, and the
response of Cherokee Nation's leadership was to deny the rumors that actual
Cherokee enrollments would resume. The results of the Agreement with the
Cherokee Nation, April 1, 1900, the Curtis and Dawes Acts, and the 1947 Act
imposed serious limitations on what Cherokee Nation could do about
enrollments without reorganizing under OIWA and IRA. Bob Stopp wrote to an
interested Cherokee:
Mr. Earl Crawford [UKB Tribal Council] has contacted this office
concerning your letter of September 7, 1970 in which you state you
read Principal Chief W. W. Keeler's statement in a local newspaper
that the younger Cherokees will be enrolled.
As far as this office knows, Mr. Keeler made no such statement.
The United Keetoowah Band of Cherokee Indians do have an enrollment
program for United Keetoowah Band members, but this is not an official
roll of the Cherokee Nation. If you would like to join this
organization, contact William Glory, Chief of the United Keetoowah
Band of Cherokee Indians . . .(Letter, 14 September 1970, B. Bob
Stopp, General Business Manager of Cherokee Nation, to Mrs. Francis H.
Woody of Oakhurst, Oklahoma)
The UKB had an ongoing enrollment project, and Cherokee Nation of Oklahoma
openly admitted the tribe was still viable, and vested with powers,
including authority over membership determinations, that Cherokee Nation
lacked.
Nothing has affected the UKB's power to charter a Cherokee Tribe or
Nation as a sub-entity of the UKB, as Congress, the UKB, and the Secretary
intended in 1950. However, such a chartered sub-entity would have to be
recognized by the UKB, its membership would have to be open to all UKB
members, and its members would have to be eligible, generally, for
membership in the UKB. Under the present Enrollment Ordinance of the UKB,
and under the proposed Amendments to the UKB Constitution, the membership
of Cherokee Nation would have to be limited to persons certified 1/4 blood
Cherokee or more by the UKB. That is unlikely to happen.
S. 3116, passed as H.R. 14676, now P. L. 91-495, 91st Cong., 2nd
Sess.(22 October 1970), the so-called "Bellmon Bill," "Authorizing Each of
the Five Civilized Tribes of Oklahoma to Select Their Principal Officer,
and for Other Purposes," provided:
Be it enacted . . . That, notwithstanding any other provisions of
law, the principal chiefs of the Cherokee, Choctaw, Creek, and
Seminole Tribes of Oklahoma and the governor of the Chickasaw Tribe of
Oklahoma shall be popularly selected [Note: by unanimous consent,
Oklahoma Second District Congressman Ed Edmondson's amendment on p. 1,
line 1, and on p.2, line 5, struck "elected" and substituted
"selected"] by the respective tribes in accordance with procedures
established by the officially recognized tribal spokesman and or
governing entity. Such established procedures shall be subject in
approval by the Secretary of the Interior.
Sec. 2. The Secretary of the Interior or his representative is
hereby authorized to assist, upon request, any of such officially
recognized tribal spokesman and/or governing entity in the development
and implementation of such procedures.
Sec. 3. A principal officer selected pursuant to section 1 of
this Act shall be duly recognized as the principal chief, or in the
case of the Chickasaw Tribe, the governor, of that tribe.
Sec. 4. Any principal officer currently holding office at the
date of enactment of this Act shall continue to serve for a period not
to exceed twelve months or until expiration of his most recent
appointment, whichever is shorter, unless an earlier vacancy arises
from resignation, disability, or death of the incumbent, in which case
the office of principal chief or governor may be filled at the
earliest possible date in accordance with section 1 of this Act.
Sec. 5. Nothing in this Act shall prevent any such incumbent
referred to in section 4 of this Act from being elected as a principal
chief or governor.
Under P. L. 91-495, for the first time since the near-dissolution of
Cherokee Nation 64 years earlier, it appeared the descendency group of
non-Keetoowah Dawes enrollees of Cherokee Nation might start the
reorganization process. Nothing in the Bellmon Bill of 1970 superseded the
Keetoowah Bill of 1946, OIWA or IRA. Nothing in the Bellmon Bill authorized
the CNO to function as an OIWA/IRA Tribe without going through exactly the
same procedures that were mandatory for any other Oklahoma Tribe or Nation
to achieve the status of an OIWA/IRA Tribe. The passage of the bill had no
immediate effect on the conduct of regular business of the Cherokee Nation
Executive Committee, or on the UKB. The UKB Chief continued to serve on the
Committee, representing the interests of the UKB in Cherokee tribal
properties and programs without interruption, as CNO prepared to hold
"selection" of a Principal Chief.("Cherokee Tribal Leaders Hold a Special
Meeting," Cherokee Nation News, 1 December 1970)
The UKB appeared to continue with business as usual under Chief Bill
Glory. Chief Bill Glory reported at least once to the Cherokee Nation
Executive Committee regarding the UKB's plan to erect and manage a multi-
million dollar nursing home facility.("Cherokee Executive Committee, Tribal
Representatives," Cherokee Nation News, 10 November 1970) BIA personnel,
General Counsel Earl Boyd Pierce, and Washington bureaucrats appeared on
the UKB agendas with Bill Glory.("Keetoowah Meeting Is Scheduled," Cherokee
Nation News, 23 March 1971) Everyone thought this was a good idea.
Late in 1971, the Commissioner of the Oklahoma State Department of
Health, LeRoy Carpenter, M. D., opined that additional nursing home
facilities would be "contrary to the Public interests," and deferred action
on the plan. The role of competing interests in the nursing home industry
in this decision is not entirely improbable.(Leeds 1992: 109) The UKB lost
control of the industrial complex and the nursing home project, and became
demoralized more than ever due to Glory's failure in leadership. Glory was
no fighter, and his policy of appeasement toward CNO and Keeler worked even
more to the direct detriment of the UKB after this fiasco. He became a
rubber stamp for CNO and the BIA.
Item 23 (b) on the agenda of the October 1970 Cherokee Nation
Executive Committee Meeting was "H. R. 3116 -- a bill to authorize each of
the Five Civilized Tribes of Oklahoma to popularly elect their Principal
Officer, and for other purposes (Now P. L. 91-495)". The Minutes say:
Mr. Victory reported . . . that the Cherokee Tribe has one year in
which to select their Principal Chief. He further presented his
recommendations on this matter: (1) That the Cherokee Nation proceed
to have an election of the Principal Chief of the Cherokee Nation in
accordance with the Congressional legislation, provided for that
purpose; (2) That eligibility lists of Cherokee Indians be determined
upon the basis of the per capita payments rolls; (3) that vote be by
ballot mailed to our Cherokees . . . . on the eligibility list giving
two names for the office Principal Chief; (4) that the names and
qualifications be determined by the Cherokee Nation Executive
Committee and Elected Representatives; (5) written ballot to be
decided; (6) that a committee be named to handle details of the
election -- B. Bob Stopp [Assistant Chief], the Chairman of that
committee. He stated there is going to be a lot of work required in
connection with this election, and doubts very seriously if the
Government will pay for this election. . . . it will take a lot of
time and expense.(Minutes, October 1970 Meeting of the Cherokee Nation
Executive Committee)
Among other unanswered questions involved the matters of establishing
voting district boundaries, setting the number of voting districts,
permissibility of absentee ballots, jurisdiction to determine voter
eligibility, and blood quantum qualifications, if any. The election
committee consisted of Crosslin F. Smith, Virgil N. Harrington, Earl Boyd
Pierce, Tom R. Morton, Richard Chuculate, Hiner Doublehead and Calvin
Nakedhead. The model for procedures was to be The Constitution and Laws of
the Cherokee Nation: 1839-1851. Keeler announced his plan to retire, ending
a 64 year line of presidentially-appointed Chiefs of Cherokee Nation, and
21 years in office himself. Although there was talk of replacing him, there
seemed to be little serious inclination to do so. Public discussions
considered the practical problem of creating a Cherokee Nation electorate
out of the body of unidentified legions of Dawes descendants:
The tribes are presently working out the all important election
procedures and other controversial issues raised by the bill. These
problems include deciding who is legally a member of the tribe and
thus may vote, how the elections will be paid for, and if the word
"select" in the bill means "elect." . . .
Also, the Seminole Tribe, which elected a chief a year ago at
the BIA's expense, now must hold another election because of the new
law. The first election cost $5,000 for only $4,700 votes, indicating
that the other four, more populous tribes may have trouble paying for
their new democracy, since they have an estimated 200,000 members in
Oklahoma.("Tribes to Pick Chiefs as Appointment Ends," Cherokee Nation
News, 19 January 1971; emphasis added)
The question remained whether these were to be Federal elections under
secretarial supervision, or whether these "selections" had anything to do
with reorganization under the OIWA and IRA (that is, the creation of new
governments):
However, Virgil Harrington, Muskogee, Area BIA director, pointed
out that "the bill says the tribes will hold the elections. If it had
said the secretary of interior would hold them, I'm sure we'd have to
pay for them."
The elections must be held within a year, after each tribe's
election rules are approved by the BIA. The law also provides that
"any procedures developed must give every member and his descendants
an opportunity to express his views" on the rules.
None of the chiefs is paid more than $7,300 annually in salary
and expenses, but they wield considerable influence because of the
large Indian population of the state, and also because all five tribes
have large federal judgments or payments pending. . . .
There is some dispute over the method the bill provides for
choosing a chief. U. S. Rep. Carl Albert has stated "there is nothing
in the bill which would prevent a tribe from popularly electing its
principal officer, but it also allows a tribe to choose some other
procedure for popularly selecting, such as a system modeled on the
present electoral college method of selecting the president."("Tribes
to Pick Chiefs as Appointment Ends," Cherokee Nation News, 19 January
1971)
These obviously were not to be elections under the OIWA and IRA. The
Bellmon Bill, as interpreted and implemented, only had the effect of
substituting a means of popular selection of Principal Chiefs in which the
approval of the Secretary of the "appointments" or "selections" of Chiefs
still played an indispensable part. The Seminole election of 1969 provided
the model:
Chief Terry Walker of the Seminole Tribe was elected under a new
tribal constitution approved in April 1969, and was subsequently
"appointed" chief by the secretary of Interior("Tribes to Pick Chiefs
as Appointment Ends," Cherokee Nation News, 19 January 1971; emphasis
added)
The non-OIWA governments of the Five Tribes under various modern
constitutions, pending the adoption of new governments under OIWA and IRA,
only created a veneer of democratic government to soften the apparent
effects of the legislation which earlier limited the sovereignty of the
Five Tribes.
A committee set the Cherokee election rules in 1971 in consultation
with tribal members, community representatives, the Executive Committee,
and Principal Chief Keeler. George Groundhog, President of the Original
Cherokee Community Organization, also served on the election committee,
which Crosslin Smith headed. Mr. Groundhog sued in 1968 to challenge the
President or Secretary of Interior's appointment of Cherokee Nation's
Principal Chiefs. He was joined by two UKB members, Lucille Proctor and
Charley S. Guess, naming Keeler, Harrington, Secretary Hickel, the
Executive Committee (including UKB members Richard Chuculate and Earl
Crawford and the UKB.(George GroundHog, et. al. v. Principal Chief W. W.
Keeler, et al., Application for Declaratory Judgment and for Injunction,
No. 69-C-120, U. S. D. C., N. Div. of Okla.) Groundhog alleged the
systematic suppression of the UKB by Keeler and others, in the manipulation
of loan transactions, the failed economic development bids, and the tribal
complex at Tahlequah. Groundhog also challenged the 1967 UKB election.
Groundhog wanted a wide-open convention in Tahlequah to deal with the
election. He believed that voting qualifications should not be based on
blood quantum, explaining that sociological norms, not blood quantum,
determined Cherokee tribal affiliation, saying, "Only the Cherokee know who
the Cherokees are. There's no such thing as blood degree."("Tribes to Pick
Chiefs as Appointment Ends," Cherokee Nation News, 19 January 1971;
emphasis added) In Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971),
the primary issue was the authority of the President to appoint the
Principal Chief of the Cherokee Nation under the 1906 Act; however, the
point was not lost that George Groundhog and the Original Cherokee
Community Organization's suit was against both Keeler and the UKB and the
Executive Committee of the Cherokee Nation, protesting non-Indian
management and power over Cherokee affairs. They opposed the support Chiefs
Jim Pickup and Bill Glory had squandered on Cherokee Nation and Chief
Keeler.
The decision vindicated the President and Secretary of Interior's
actions, and left intact the power of the UKB regarding its own business
affairs. The Bellmon Bill made tribal "selections" of chiefs or governors
almost inevitable, but reorganization of CNO under OIWA/IRA remained out of
the question, because reorganization did not serve the ends of those who
had power within Cherokee Nation. Though Groundhog lost his suit, the
tables were turning, though they turned slowly. Glory was forced into
confronting Keeler about Business Manager Ralph Keen's high-handed and rude
behavior toward fullbloods, and Keen resigned under pressure.(Leeds 1992:
102-103)
In 1972, to the abject horror of the UKB and all the other candidates
for CNO Principal Chief, Chief William Glory of the UKB announced his
support for W. W. Keeler and actively campaigned for him. To Keetoowahs,
this was the final proof that Glory, despite his apparent conflicts with
Keeler, was a tool for Keeler and CNO. Some later believed that Glory's
"eviction" from CNO offices in 1969 perhaps was only a "demotion."(Leeds
1992: 133)
Principal Chief W. W. Keeler was "selected" to succeed himself as
Principal Chief on 14 August 1971, when Cherokee Nation held its first
"selection" of a Chief under the Bellmon Bill. Of 10,086 ballots cast,
4,604, or 45%, were absentee. Of the total 7,495 votes cast for Keeler,
3,391, or 45%, were absentee. The percentage of absentee ballots composing
the total ballots for winners relative to the winners' votes from in-person
ballots increased in later Cherokee "selections" of Chief and general
elections, and always has been determinative of the outcome.(Leeds
1992:114) The first order of business for Keeler was drafting a new
Constitution. Earl Boyd Pierce and a drafting committee of 21 agreed on
certain terms to ensure the new agenda, including notably Article XIV
("Nothing in this Constitution shall be construed to prohibit the right of
any Cherokee to belong to a recognized clan or organization in the Cherokee
Nation"). While skirting altogether the point that the UKB Base Roll was
distinct from the Dawes Roll, this article presumed that the UKB was part
of CNO. While the constitutions of Muskogee Creek Nation and the Creek
Tribal Towns stipulate to mutuality of a Base from which they derive their
Rolls, and though they expressly permit dual affiliation, today they are
regarded as separate entities, and the Creek Towns are allowed separate
funding and sovereignty. Article XIV of the CNO Constitution became a
weapon for CNO to challenge the sovereignty of the UKB.
Article XVI stated the new Constitution superseded the 6 September
1939 Constitution. This meant that the new government claimed all
governmental authority of CNO that remained intact after the abolition of
the 6 September 1839 Constitution in 1906, and any Congress or the
Secretary might vest, until such time as the CNO reorganized under OIWA and
IRA. Article VI, Section 2, lowering the age of Chief candidates to thirty
from thirty-five years.(Leeds 1992:115) Article V, Sections 2 and 3 of the
2 February 1975 draft stipulated that the Principal and Deputy Chiefs must
be 1/4 Cherokee, matching the minimum membership requirement of the
UKB.(Leeds 1992: 116) In the approved version of 2 October 1975, the BIA
required the deletion of the minimum blood degree requirement.(Leeds 1992:
116)
In the early seventies, the conventional wisdom was that when the last
Cherokee Dawes enrollee died, there would be no further need for tribal
services to Cherokee Nation members in northeast Oklahoma. In Commissioner
Louis Bruce's departmental publication, American Indian Tribes and their
Federal Relationship (1972), United Keetoowah Band of Cherokee Indians in
Oklahoma listed as a fully organized Tribe (Category 1) whose organic
documents had been approved by the Secretary; population of Cherokee Nation
was classified as eligible to receive services, but lacking any
governmental organization or authority (Category 3). At p. 1, Bruce defined
the BIA's category (1) as, "Indian or Alaska Native organizations whose
constitutions are approved by the Secretary of the Interior under Federal
statutory authority of the Indian Reorganization Act, Oklahoma Indian
Welfare Act, or Alaska Native Act." At p. 2, he defined category (3) as,
"Indian organizations without written governing documents that are served
by the Bureau of Indian Affairs." Bruce decided that category (1) includes
United Keetoowah Band of Cherokee Indians in Oklahoma (p. 29), under
Oklahoma -- Tahlequah Agency, whereas Cherokee Nation of Oklahoma was under
category (3). [Under Cherokee Agency, Eastern Band of Cherokee Indians was
designated as category (3) at that date, as well.] The Department appears
to have viewed these findings as a Decision of the Secretary as to the
tribes' status. Bruce's publication reflects the ruminations of Earl Boyd
Pierce on the governmental status of Cherokee Nation, in 1967:
The sole source of legal power is vested in the Principal Chief under
Federal law, and for over fifty years Congress has shown no
disposition to change this situation, even if it was desired.(See
Letter, 7 April 1967, Earl Boyd Pierce, "General Counsel, Cherokee
Nation," to Dr. George E. Fay, Assistant Professor, Department of
Anthropology, Colorado State College, Greeley, Colorado)
However, Pierce breathed no word of this in the presence of the UKB.
Instead, W. W. Keeler and Earl Boyd Pierce continued to have very cordial
relations with Chief William C. Glory of the UKB, as with his predecessors,
and Cherokee Nation or Tribe continued to use the governmental authority as
the vehicle for conducting business for which Cherokee Nation lacked
authority.
In 1972, cooperative undertakings kept the UKB and the Cherokee Nation
on speaking terms, if somewhat at arm's length, and there was hope for the
creation of a trust to hold and use or invest all Cherokee property, land
and money for the benefit of the Cherokee people. The Executive Committee
created a plan and procedures to establish a set of Trusts to manage
Cherokee undivided assets in 1971. A special meeting of the Executive
Committee of the Cherokee Nation or Tribe convened on 14 January 1971 at
the Cherokee Nation Tribal Office Conference Room to consider nominations
to serve on new Boards of Trustees for the management of Cherokee tribal
lands in Adair, Cherokee, Sequoyah, Muskogee, Kay, Delaware and Mayes
Counties. Policies and Procedures for these Boards already existed. Bud
Welch of Pryor, a member of the UKB and one-time officer, served on the
Delaware and Mayes Counties Board ("Special Meeting of Cherokee Tribal
Officials and Leaders Is Held," Cherokee Nation News, 19 January 1971)
Strangely enough, it was only months later that Keeler and Pierce received
what purported to be an official UKB communication regarding the future
establishment of a trust. Glory wrote to Keeler on UKB stationary in spring
of 1972:
We urge you to create a legal trust to hold and use or invest all of
our Cherokee property, lands, and money, for the benefit of the
Cherokee people.
You should serve as chairman of this great trust, and Congress
should be requested to help you create it.
You can absolutely count on the United Keetoowah Band of Cherokee
Indians in Oklahoma, who you represent, to support you in this
magnificent undertaking.(Letter, 6 March 1972, Chief W. C. Glory to
Principal Chief W. W. Keeler)
Nothing in the record shows that Glory wrote this letter with authority
from the UKB Council. Glory had to be aware that the trusts already
existed, and wrote this letter as a post-hoc sort of ratification of the
idea, giving Keeler a poor substitute for the UKB tribal resolution Keeler
had demanded and received from his Executive Committee and Community
Representatives: a resolution which would have granted Keeler virtual carte
blanche to control all UKB governmental and business activities. Glory's
idea of entrusting all Cherokee property to Keeler, the Executive
Committee, or any trust, was a questionable in terms of the UKB Charter,
Section 4 (a), (b) and (c), which specifically prevent the transfer of
certain kinds of UKB property to any other entity:
4. The foregoing corporate powers shall be subject to the following
limitations.
(a) No land belonging to the Band or interest in land shall ever
be sold or mortgaged.
(b) No land or interest in land owned by the Band shall be
leased for a longer period than ten years, except that oil,
gas, or mineral leases may be made for longer periods when
authorized by law.
(c) Any lease, grazing permit, or timber sale contract covering
land owned by the Band shall provide that the person to whom
such lease, permit, or contract is awarded, must conform
with regulations issued by the Secretary of the Interior
under section 6 of the act of June 18, 1934 (48 Stat. 984).
However, nothing except secretarial approval authority limited or prevented
shared management of undivided property shared by the CNO and UKB alike.
(Recall that in December 1846, the GAO pressed the Commissioner of Indian
Affairs to advise the GAO about the segregation of UKB funds from those of
the Cherokee Tribe, and that there is nothing to indicate that the separate
fund ever existed; see Letter, 18 December 1946, Accounting and Bookkeeping
Division at the GAO to Department of the Interior, re: establishment of
separate UKB accounts; *: IV; File # 52101, AB 3. 1 DMJ)
Keeler responded to Glory's suggestion (which he obviously solicited,
in order to lend the appearance of propriety to his own machinations):
Just a note to tell you how very much I appreciate your continued
interest in the welfare of our people and, especially, your suggestion
that a legal trust be created to hold and use or invest all Cherokee
property, land and money, for the benefit of the Cherokee people.
I also want to express my appreciation for your statement that we
could count on the United Keetoowah Band of Cherokee Indians to
support this undertaking, and at the same time, thank you and the
United Keetoowah Band of Cherokee Indians in Oklahoma for the support
you have always shown to projects which were in the best interest of
the Cherokee people.
I am sure you realize that such a trust would involve many
problems and will require considerable study before any decision can
be made, however, I want you to know that your suggestion will be
given every consideration.(See Letter, 17 March 1972, Principal Chief
W. W. Keeler to Chief W. C. Glory)
Glory even asked Keeler and Pierce to help in facilitating relations with
Congress. There never was any suggestion that the UKB intended to cede its
sovereignty or property rights to the former Cherokee Nation or its
representatives, or to the Cherokee Nation of Oklahoma upon the creation of
the latter entity's Constitution. No legal authority allows the summary
cession of property and sovereignty from an OIWA-chartered IRA tribe to an
Indian group in Oklahoma, particularly one that lacks the same status.
After obtaining the award of a $12 million settlement in the Cherokee
Outlet case in 1964, Chief Keeler had sought a way to invest the money
remaining after per capita payments to tribal members. The Cherokee
Historical Society as a corporation owned the Tsa-La-Gi Theater, where the
Trail of Tears drama appeared each summer, a Cherokee Village tourist
attraction, and the Cherokee Museum. Most people believed that the tribe
owned the motel complex and controlled the theater, but the paper trail
showed a very different picture. On 20 July 1972, the Cherokee County
Commissioners created a trust indenture called Jelanuno, headed by Chief W.
W. Keeler, which was trustor for the property of the Cherokee Nation
Historical Society. The trust indenture conveyed to Jelanuno its "property,
proceeds, returns, profits and increases thereof" for $1. Jelanuno's
purpose was to promote development of a wide range of activities from
cultural and educational to commercial and industrial. On 12 September
1973, Cherokee Nation conveyed to Jelanuno a warranty deed to the tract of
land on which Tsa-La-Gi Inn and other businesses (included the service
station, a small manufacturing plant, and the like) now stand, for the sum
of $10. Keeler signed the deed as Principal Chief of Cherokee Nation of
Oklahoma. The next day, Jelanuno borrowed $1.2 million from the National
Bank of Tulsa, now called Bank of Oklahoma, granting a first mortgage on
the tract and improvements upon it, as well as rental fees securing
promissory notes for the loan. On that same day, CNO entered into a lease-
purchase agreement with Jelanuno in which the Tribe agreed to pay $11,099
monthly for 15 years, which since then has been extended, to lease the
"retail restaurant, arts and crafts shop, club and motel business" now
located on the tract which the Tribe had conveyed the previous day to
Jelanuno for $10 in the warranty deed. J. D. Johnson, a candidate for
Principal Chief, and Leon Daniel, a Cherokee merchant in Tahlequah, as well
as Chief Keeler were trustees for Jelanuno, serving "indefinite terms"
according to the document creating the trust. Due to the Jelanuno
transactions, Keeler stepped into a permanent continuing role in tribal
affairs, due to his position as virtual trustee-for-life, so that he would
control the affairs of CNO no matter who was Principal Chief. Claiming in
1975 on the eve of the Principal Chief's election that he would be willing
to resign as trustee "if the Cherokee people desired it," Keeler declared:
The Jelanuno trust was created originally with the idea of using
revenue bonds with tax credits to pay for the Tsa-La-Gi Theater but
that never became necessary although the trust indenture had been
signed. Later it became the vehicle to use tax credits and revenue
bonds to build the Tsa-La-Gi Inn. It helped reduce construction
costs.(Bill Sampson, The Tulsa Tribune, State Page, Section D,
Thursday, 31 July 1975. Ross O. Swimmer was notary on the Jelanuno
documents)
Thus, the Jelanuno Trust allegedly was created primarily to cut costs in
construction of the motel through tax credits, and Cherokee County was
named beneficiary of the trust to meet tax credit requirements of the U. S.
Keeler added:
The Federal government should recognize that Indian tribes are capable
of handling their own affairs, then we wouldn't have to create
situations like this in order to get tax credits normally allowed
other institutions through routine channels. The tribal government
should be allowed to establish a trust and to serve as beneficiary for
trusts instead of us having to involve Cherokee County in this. It's
a reform for the future but at my age I can't pursue it.(Bill Sampson,
The Tulsa Tribune, State Page, Section D, Thursday, 31 July 1975).
Keeler's statement was spurious, because the UKB could have provided an
alternative, as an OIWA/IRA tribe. The question is why CNO evaded this
alternative. The answer is simple: although the Tribe elected Keeler in
1971, he and other chiefs of tribes operating without tribal constitutions
needed only to answer to the Secretary of the Interior and President
regarding tribal administration. While taking the recommendations of his
Community Representatives and Executive Committee into consideration, he
still was not legally bound to do so. For instance, while the CNO's
"elected representatives" had "approved" the construction of the Motel by
a 17-16 vote, they had no role at all in the creation of Jelanuno. Keeler
explained that Jelanuno means "railroad", and that:
at one time the trust planned to build a line from the motel to the
theater a few miles distant and obtain early-day railroad equipment
for it. That idea was discarded when right-of-way and financial
problems made it impractical.(Bill Sampson, The Tulsa Tribune, State
Page, Section D, Thursday, 31 July 1975).
For the UKB, the name "Jelanuno" was descriptive of yet another railroaded
development program involving Cherokee trust funds, conceived without UKB
participation, and intended primarily for other beneficiaries. The train
had no stations for the UKB. The UKB, rather than the County, had the power
to establish a corporations and the Jelanuno trust, but as in all other
areas after 1975, CNO cut the UKB out of a direct participatory role in
managing common tribal property, even where the cooperative engagement of
the two tribes in common enterprise made perfect sense, because UKB could
not easily dispose of realty held or acquired in keeping with the UKB's
OIWA Charter [Section 4 (a), (b), (c)]. The UKB's OIWA/IRA organization
posed a serious handicap to the freewheeling business style of Chief
Keeler.
The status quo at Cherokee Nation remained until the first sign of
real trouble flared in 1973, when Keeler was fined $1000 for making an
illegal $100,000 contribution to the reelection campaign of President
Richard M. Nixon.(Tulsa World, 6 September 1976, in Leeds 1992: 116) It is
hardly surprising that the President left Chief Keeler in office,
notwithstanding the admitted authority (under the 1906 Act and the new
Constitution) of the U. S. Executive to remove the Principal Chief. This
was the first, but not the last or worst such predicament for Keeler. Chief
Glory's response to Keeler's conviction was that the conviction was for a
trivial breach of political manners, and that the fine was just a cost of
doing business. Glory's refusal to break with Keeler and officially
distance the UKB from the CNO over the matter utterly obliterated what
remained of his personal and political credibility with a large number of
Keetoowahs, including some Republican members. While other UKB members
raged on about the Keeler conviction, Glory inexplicably continued his very
public political dalliance with CNO and Keeler and refusing even to admit
that Keeler's wrongdoing was a breach of etiquette.
Political party affiliations had always been an issue among the
Keetoowahs, but after Keeler's conviction, Glory's irritating passivity
before Keeler was intolerable for many UKB members, regardless of their
political stripe. It was inevitable that for "yellow dog Democrats" among
the UKB (including UKB Vice-Chief Bud Welch), Keeler's conviction was a
watershed event. Bud Welch had campaigned for Keeler all over Oklahoma in
the first election, and once had thought Keeler could do no wrong; now Bud
could not hold his head up around his Democratic friends, without doing
something in protest. To Welch, Glory's personal ambitions and greed had
blinded him and rendered him useless. About one month after the Keeler
scandal surfaced, Vice-Chief Bud Welch stated that he did not wish to
continue on the Council or run again for office, because Glory had allowed
the Band to stagnate in CNO's corruption. Welch publicly declared that
under Glory, the organization had lost the respect of the members and honor
in society at large, and that the UKB was therefore unable to "push forward
for the Cherokee people, regardless of personalities involved."(Letter,
Vice Chief Bud Welch to UKB Council, in Leeds 1992: 128; personal
recollections of members of the Welch family)
Theoretically, as a member of the Executive Committee, the UKB Chief
could assert moral authority in the Band's defense in the disposition of
Cherokee trust property and program funds. After several years of
attempting to work cooperatively with the Keeler Administration during the
late 1960s and early 1970s, Chief Bill Glory became deeply frustrated with
the Keeler administration's refusal to make good on promises to help the
UKB obtain a 2-acre parcel on which to build a tribal council building; and
Glory's continuing support for Keeler in times of travail availed Glory and
the UKB nothing. To the UKB, Glory's little office at the Cherokee Tribal
Complex near Tahlequah did not represent a real collaborative effort
between the Chiefs or shared authority between the tribes. Glory was under
Keeler's line of sight at all times while at the CNO Tribal Complex, until
Keeler had him evicted in 1969. Many believed that Glory had his office
beside Keeler's because Keeler wanted Glory to be visibly under Keeler's
thumb. On the other hand, allegations of Glory's personal involvement in
BIA housing scandals of the early 1970s while he was on the Housing Board
embarrassed the Band, and some have suggested that Glory's unclean hands
prevented him from doing anything to affect the course of events.
Glory was not, unlike Keeler, the real source of power in his tribe.
Strong members of his Council, including Rachel Quinton (16 September 1969)
and Bud Welch (12 October 1973), rebelled against his weak leadership and
questionable business practices. Quinton quit the Council for a time, and
Welch resigned altogether in outrage. The UKB Council saw to it that Pierce
and Keeler remained frustrated in their efforts to coerce UKB into
acquiescing to termination. Near the time of the final break between the
Chiefs, Keeler demanded that Glory get him a resolution from the UKB
Council seeking the revocation of the UKB Charter, threatening to pursuade
Congress to exercise its own power to revoke the tribe's status under
Section 8 of the Charter against the UKB's will. Glory refused.
In January 1974, Earl Boyd Pierce retired after a quarter-century as
General Counsel for Cherokee Nation of Oklahoma, and nearly 27 years as
attorney for the UKB. Chief Glory represented the UKB at the retirement
dinner:
Chief William Glory, spoke in glowing terms of the many services
rendered the Cherokees and told the early day organization of the
Keetoowah Band, of the need for housing, education, employment, etc.,
and these programs have come to life.("Pierce Honored As Retiring
General Counsel," Cherokee Nation News, 27 January 1974)
Pierce continued work on the Arkansas River bed claims, and oversaw the
transition, as Ross Swimmer assumed responsibilities as General Counsel. In
October 1974, Chief Glory retired from the Cherokee Housing Authority
Commission. He was a member of the National Association of Redevelopment
Officials, and the State Charter of NAHRO. He was a charter member of the
Board of the Housing Authority Commission, and served eleven years. During
this period, the Commission completed 2000 homes and low-rent housing
units, including Keetoowah Village, a 100 unit public housing project north
of Bacone College in Muskogee. A contemporary report in the Cherokee Nation
newspaper stated:
The UKB sponsored that particular project. Glory is Chief of the
United Keetoowah Band of Cherokees, Cherokees of Oklahoma. [sic] This
band was responsible for tirbal [sic] and program planning for the
initial development of the many programs of the Cherokee Nation. Chief
Glory related how a committee of three, Earl Crawford, Reverend Jim
Pickup and he, sat with Chief W. W. Keeler, Virgil Harrington, Earl
Boyd Pierce and Marty Hagerstrand and created "fact sheets" programing
[sic] money to build the Cultural Center and the Cherokee Nation
Complex. This "fact sheet" was complied in 1961-1964.("Glory Retires
from Cherokee Housing Authority Commission," Cherokee Nation News, 7
June 1974)
Keeler saw the writing on the wall and knew that some day his political
activities in the national arena and snafus at home would trip him up
again, and he began to settle his affairs as Chief, though he would remain
in charge of Jelanuno Trust. Matters did not improve at all when Ross O.
Swimmer resigned as Counsel to Cherokee Nation and ran for Principal Chief
in the 1975 election. Pierce fed information and advise to his successor,
Ross O. Swimmer. In 1975, preparing for his run for Principal Chief, Ross
O. Swimmer resigned as legal counsel to Cherokee Nation. The Election
Regulations of Cherokee Nation of Oklahoma for the second election under
the Act of October 22, 1970 (84 Stat. 1091; P. L. 91-495) were approved on
8 May 1975, with the election to follow in September.
Of the ten candidates to succeed Keeler, Sam Drywater, Jim Gordon, Rev.
Sam Hider, Ralph Powell, Rev. Charles Sanders, Butler Welch and George
Wickliff all were UKB members; indeed, only J. D. Johnson, David Shell and
Ross Swimmer were not.(Leeds 1992: 118). For reasons that remain obscure,
though Keeler initially favored Jim Gordon, former Chief of the Office of
Administration for the Indian Health Service, to succeed him,(Leeds
1992:117) Keeler switched support to Ross O. Swimmer, who was under age 35.
Then the word broke that as much as $850,000 was missing from the
Cherokee Nation Builder's fund, and it appeared the Cherokee Housing
Authority was taking kick-backs from the builders, and quickly things went
sour for Chief Bill Glory. The UKB Council demanded to know the extent of
Glory's involvement in the mess, because he had been a member of the
Authority as Vice-Chief of the Band, and as Chief, until 1974.(Leeds 1992:
118). Keeler promised a swift investigation.(Letter, 24 January 1975,
Thomas Ellison, Area Director, Muskogee Area Office, BIA, to Commissioner
of Indian Affairs, regarding 21 January 1975 meeting with UKB Council; in
Leeds 1992: 119) Raymond V. Butler, Director of the Washington Office of
Indian Services, found out about the matter and directed Ellison to keep
him informed.(Letter, 7 March 1975, Raymond V. Butler, Director of the
Washington Office of Indian Services, to Thomas Ellison, Area Director,
Muskogee Area Office, BIA, regarding 18 January 1975 Council Meeting of UKB
Council; in Leeds 1992: 119) Keeler called out the Oklahoma State Bureau
of Investigation (OSBI), and alerted Reverend Scott Bread (UKB member,
former Sheriff of Cherokee County, then security officer for the complex,
who died in 1993 in office as security guard for the UKB offices). Bread
and other investigators found that a staggering quantity of building
supplies had walked off the site with the aid of faked destination
vouchers.(Leeds 1992: 119) Thereafter, Keeler experienced political flak
due to his outspoken support (short of direct endorsement) of Ross O.
Swimmer as his successor, even as the Governor and the OSBI felt pressure
from other candidates to uncover the investigation's findings. Since Keeler
was Chief at the time of the thefts and Swimmer was General Counsel,
candidates wanted any information on the connection of the pair with the
alleged thefts. All CNO employees consented to take lie detector tests, and
passed, except for Ross O. Swimmer, who declined, but later claimed he had
taken the test and passed. The Governor's office refused to release the
information, stating that this would be improper in the event criminal
charges were filed, but a Grand Jury convened in Tahlequah brought in no
indictments.(Leeds 1992: 120)
In the midst of this furore, Keeler decided to resign in a Letter of
8 July 1975 to the BIA. Instead of submitting his resignation to the Tribe
(which would have had no legal effect), Keeler wrote to the BIA Muskogee
Area Director, Thomas Jack Ellison, of the decision:
Both of us have been subject to criticism on the basis that we might
take advantage of our position and authority to help our respective
candidates. I think that by putting ourselves in this position should
allay any fears on the part of those that think that we will misuse
our authority.("Cherokees Protest Keeler BIA Request," Cherokee Nation
News, 11 July 1975)
Keeler had stopped short of resigning outright and terminating his Vice-
Chief. Consultation with the Tribe in the matter was not his concern. As a
lame duck, Keeler wanted to be free of responsibilities in the last thirty
days of his term so that he could do what he like politically in support of
Swimmer. Federal contracts were being let in this period, at a crucial
point. In this peculiar move, Keeler revealed his real attitude about the
nature of the office of Chief after the Bellmon Bill, and the effect of the
Harjo and Groundhog cases on his role as Principal Chief. Keeler clearly
understood that as a non-OIWA/IRA Principal Chief of Cherokee Nation, his
source of power nominally was the inherent power of the Cherokee Tribe, but
was not the 1839 Constitution. As Chief of a non-OIWA/IRA government,
Keeler was accountable to the U. S. President or his agent, the Secretary
of the Interior, not to his Council or Community Representatives.
Even more enlightening was the Area Director's response to Keeler's
offer to resign. Attempting to reassure the Cherokees, Ellison said:
We are already trustees of Cherokee Nation affairs now. We could
supervise the tribe's affairs until the election [August 2] with few
problems.("Cherokees Protest Keeler BIA Request," Cherokee Nation
News, 11 July 1975; brackets added)
So much for "democratic government." Agnes Cowen, Chair. of the Community
Representatives, said she would demand Keeler's resignation. The assembly
also decided to file suit to enjoin the BIA from assuming direct
responsibility for the Tribe's business in the event Keeler failed to
respond to their demands. Cowen recalled that Keeler had offered to resign
at an earlier meeting, and she stormed that his letter was:
humiliating and degrading to the Cherokee Nation. He is saying the
Cherokees are imbeciles and cannot govern themselves. He had neither
the courage nor the kindness of heart to tell his people this face-to-
face. He chose to act behind closed doors.
The passage of the Cherokee Constitution of 2 October 1975 was to have no
legal effect on this state of affairs. The Cherokee Nation of Oklahoma that
the BIA recognizes today was born when the Nation adopted the 1976
Constitution.(Leeds 1992: 142) Keeler asked the BIA to "assume for the
balance of my term in office the responsibility for decisions of any
significance with this tribe with regard to myself or to Mr. B. Bobb Stopp
[Vice-Chief]."("Cherokees Protest Keeler BIA Request," Cherokee Nation
News, 11 July 1975) Cherokees responded in a storm of outrage, realizing
immediately that the "representative Cherokee government" under the non-
OIWA/IRA administration of Keeler had been little more than a surrogate for
direct line management by the BIA. Six chief candidates, Elected Cherokee
Community Representatives, tribal employees gathered at the Tsa-La-Gi Motel
for three hours to demand that Keeler appear at a meeting with BIA
Commissioner Morris Thompson and Area Director Thomas Jack Ellison to
explain Keeler's action.
In the election, within the Nation's boundaries, James Gordon was the
top vote-getter, but the absentee ballots placed him third behind Sam Hider
and Ross O. Swimmer, who won by 278 votes. Swimmer became Chief, because
there was no run-off provision. The story has circulated since that Swimmer
and one of his supporters planned to hand-carry a large number of ballots
to California, mark and mail them from there. A recount gave Swimmer two
more votes.
Though Gordon, Drywater, Powell, Welch and Wickliffe hired an attorney
to petition in the U. S. Disctrict Ct., Eastern Dist., Oklahoma against
Tahlequah BIA Agency Superintendent Joe Ragsdale, Keeler and Swimmer,
alleging numerous election irregularities, also indicating that candidates
for Chief had to be at least 35 years old under the Cherokee Constitution
of 1839. They also charged denial of equal protection, alleged election
irregulatrities, and cited specifically withholding of registration
certificates, absentee ballots, and destruction of ballots. Muskogee U. S.
District Judge Joseph W. Morris determined that the 1839 Constitution was
a "dead letter," and validated the election, precisely because the old
Cherokee Nation no longer existed. Therefore, notwithstanding the Act of
1906, which specifically preserved the "government" of Cherokee Nation
after that date, and notwithstanding Harjo, the Court found that the 1839
Constitution was invalid after the Cherokee Reservation became part of the
new State of Oklahoma.("Election Law Suit Filed Against Swimmer," Cherokee
Voices, May 1976; see also: Leeds 1992: 123; Sam Drywater, et al. v. W. W.
Keeler, et al., Case No. 75-247-C, 1975) Cherokee citizens fought the
result with a petitioning drive, to no avail, when the Secretary determined
that it was permissable for the Principal Chief to make the election rules
for the first election.(Leeds 1992: 124-125) Thus, the UKB lost its last
chance to control the future and fortunes of CNO by making it a legitimate
daughter of the UKB. In his State of Nation Address, Swimmer announced:
. A new Constitution has been ratified by the Cherokee people by a
seven to one margin.
. The Tribal Administration has been reorganized to provide a
better chain of command and a better means of guaging [sic] the
progress of the Nation.
. The appointed Council has met for the last year and has helped
the Chief a great deal in his efforts to move the Nation forward.
. Registration procedures and roles [sic] are being cleaned up.
Everyone should be able to vote in the council election. . . .
We are going to have a Council, we are going to have a Deputy
Principal Chief so that we have a representative form of government
and it will be done very soon.(Ross O. Swimmer, "State of Nation."
Cherokee Voices, September, 1976)
After the 1975 election, ending months of puzzlement regarding Keeler's
late actions and strange retirement, a Federal Grand Jury handed down
indictments on 2 September 1976 after the Securities and Exchange
Commission alleged that Keeler and two other Phillips Petroleum executives
secretly disbursed over $2,800,000 to Swiss corporations with over
$1,300,000 returned to the U. S., of which about $600,000 went to political
campaigns.(Tulsa World, 3 September 1976)
Swimmer quickly moved to consolidate his power and abolish legitimate
opposition with a slate of officers he could call his own, and removed Jim
Gordon from any remaining responsibilities he had held as Keeler's
appointee to Claremore Indian Health Service Board of Directors, using the
excuse that Gordon had recommended Paul Thomas, another Keetoowah, to the
board of a local Community Action Foundation serving Wagoner, Rogers and
Mayes Counties.(Leeds 1992: 125-127) The UKB was facing a Reign of Spite.
Swimmer remained Principal Chief under the 1975 Constitution until he left
office to become Assistant Secretary for the Department of Interior for
Indian Affairs.
* * *
Writing about the Cherokee Nation at that date after 1975, the
Wahrhaftigs (1979:225, 226) concluded:
The Cherokee tribe, as defined under United States law, is itself an
ethnically plural society. The present Cherokee tribal government was
created and is directed by white Americans of Cherokee descent who are
legally recognized as Cherokees. When conflict between Cherokees in
traditional settlements and the tribal government, imposed on them by
whites legally designated as Cherokees occurs, this conflict is passed
off as factionalism within the Cherokee Tribe.
In Harjo v. Kleppe, 420 F. Supp 1110 (D.D.C. 1972), aff'd. sub nom. Harjo
v. Andrus, 581 F.2d 949 (D.C. Cir. 1978), regarding specifically the Creek
Nation of Oklahoma, the court conclude in the 1972 action that the Federal
court will have jurisdiction over an issue which alleges that the Secretary
of the Interior had acted unlawfully in refusing to permit a tribal
legislative body to participate in the determination of uses of tribal
funds. The Creek Tribal Towns were found not to be affected by the lawsuit,
since their Federal relationship through their OIWA and IRA reorganization
is independent of their relationship with Creek Nation, even though the
Constitution of Thlopthlocco tribal town (27 December 1938), and that of
the Alabama-Quassarte tribal town (10 January 1939 recognize that
membership in the town is not inconsistent with membership in the Creek
Nation. Finally, the court in the 1978 action, upholding the court below,
held that the Interior Department had circumvented congressional intent, in
the 1096 Act, that the affected tribal governments should persist:
During the period immediately following the approval of the Five
Tribes Act, the Interior Department behaved as though it had been
successful in its efforts to prevent the enactment of Section 28 and
the Congressional changes made in its draft of Section 6. The
available evidence clearly reveals a pattern of action on the part of
the Department and its Bureau of Indian Affairs designed to prevent
any tribal resistance to the Department's methods of administering
those Indian affairs delegated to it by Congress. This attitude, which
can only be characterized as bureaucratic imperialism, manifested
itself in deliberate attempts to frustrate, debilitate, and generally
prevent from functioning the tribal governments expressly preserved by
Section 28 of the Act (at 1130).
The Harjo Court held that the Creek National government survived the
statutory provisions for the dissolution of the government, leaving the
1867 constitution intact. However, in 1975, Cherokee Nation of Oklahoma was
created when Cherokee voters replaced the 1839 Cherokee Nation
Constitution, without proceeding to reorganize under OIWA/IRA. Today, CNO
blithely claims the benefits of OIWA/IRA with none of the responsibilities,
regardless of the 1937 Director of Lands Decision regarding the power of
the old Cherokee Nation to reorganize [MEMO TO INDIAN ORGANIZATION, 25
October 1937, from Director of Lands (WDW) to Daiker, Indian Organization
(enclosure 1310901, and File # 163618)], and the Assistant Secretary's 1988
reaffirmation of the 1937 Land Division Opinion (Letter determination, 4
February 1988, Hazel E. Elbert, Acting Assistant Secretary of Interior for
Indian Affairs, to James G. Wilcoxen, Esq., Wilcoxen and Cate, Muskogee,
Oklahoma), concluding that CNO is not authorized to reorganize under OIWA
and IRA. Clearly, the Harjo Court's view of the Five Tribes' history needs
some refinements, if the analysis is to be applied to the Cherokee Nation
and the UKB, because by 1906 the 1839 Cherokee Nation constitution was
void; and in any case, by 1975, the new Cherokee Nation of Oklahoma
Constitution provided (at "Article XVI. Supersedes Old Constitution 1839"):
The provisions of this Constitution overrule and supersede the
provisions of the Cherokee Nation Constitution enacted the 6th day of
September 1839.
The Harjo Court also found that the Creek Tribal Towns were not affected by
the operation of the suit, because their Federal relationship under the
OIWA operates independently of their relationship with and role in Muscogee
Creek Nation affairs. The UKB ardently fought for organization against the
strong opposition of officers such as Area Director Roberts. On the other
hand, the presidentially-appointed Principal Chiefs, who served at the
pleasure of the President and Secretary of the Department Interior, were
hardly ardent advocates of reorganization, and indeed actively participated
in the suppression of reorganization under OIWA and IRA through the 1970s.
Again, though claiming the benefits of OIWA/IRA, Cherokee Nation still
strangely declines to reorganize under OIWA/IRA, or under the UKB.
Interestingly enough, on 20 April 1978, Thomas W. Fredericks, then the
Associate Solicitor, Division of Indian Affairs, responded in a Memorandum
to a 28 February 1928 request of the Chief, Division of Law Enforcement
Services, for "a determination of the current status of tribal civil and
criminal jurisdiction in the portion of the State of Oklahoma that was the
Indian Territory when the Curtis Act, 30 Stat. 495, was passed on 28 June,
1898." Fredericks held that:
Since no subsequent legislation has repealed or modified these
provisions, it is our conclusion that no tribe located in the portion
of Oklahoma that was the Indian Territory in 1898 may exercise either
civil or criminal jurisdiction. Such tribes may not be certified by
this Department as eligible for LEAA funding.
As you point out, the "Judicial Appeals Tribunal" established in
Article VII of the Constitution of the Cherokee Nation of Oklahoma is
an administrative tribunal. Its task is to review disputed decisions
by Cherokee tribal officials. Its role is similar to that of the
Office of Hearings and Appeals in this Department. The administrative
nature of this tribunal is made clear by the requirement that it
operate in accordance with the Oklahoma Administrative Procedures Act.
The Harjo case did not turn CNO into an OIWA/IRA tribe, and Harjo did not
restore aspects of sovereignty to CNO that Congress had not restored.
Congress has only provided since 1990 the means for CNO to establish a
court system, free of the responsibilities of a tribe organized under OIWA
and IRA.
[[The 1988 Muscogee (Creek) Nation v. Hodel case (D. C. Circuit) held
that the OIWA repealed the Curtis Act, which abolished tribal courts, and
that the Creek Nation has the power to establish "[governmental processes]
subject to the limitations imposed by statutes generally applicable to all
tribes." By implication, organization under OIWA repeals the applicability
to any particular Oklahoma tribe all statutes inconsistent either with IRA
or OIWA. All the tribe has to do is reorganize according to the provisions
of the OIWA and IRA. Cherokee Nation of Oklahoma does not appear to qualify
for this dispensation, in view of the Secretary's 4 February 1988
determination reaffirming the 25 October 1937 Land Division Opinion [See
Work, "The 'Terminated' Five Tribes of Oklahoma," 6 Am. Indian L. Rev. 81,
at 98-107 (1978), regarding similar actions against the Seminole Nation.]
The court concluded that the effect of Section 28 of the Five Tribes Act
was to allow the Creek government to operate under its 1867 Constitution,
"as modified by the various statutory limitations."(at 1130)

THE ATTEMPTED ADMINISTRATIVE TERMINATION OF THE UKB, 27 APRIL 1979 - 11
APRIL 1991

For the UKB, April always has been the cruelest month. After Swimmer's
election and the election of CNO's Council in 1975 and 1976, the UKB
attempted to survive without Federal support and with rigid opposition from
Swimmer. In retrospect, Chief Bill Glory's leadership was hopelessly tarred
as early as 1970, with the failure of all efforts at economic development
for the Band. Knowing that Glory was in declining health and fortunes, the
UKB tribal members took things into their own hands by 1975, and pushed for
reform and revitalization within the Band in any way they could, whether by
running for office, or joining the Cherokees for Responsible Government, or
joining the "underground" Keetoowah opposition movement under Tom Hicks,
Henry Doublehead and Willie Jumper, or by serving in the Cherokee Community
Representatives organization. All had wanted to place Cherokee Nation
government and resources in the control of fullbloods, but failed at that
effort because they did not work in concert. They only could control their
own UKB government, and leave CNO to its own devices.(Leeds 1992: 133)
Some UKB members set out to create an opposing government free of non-
Indian influence under the leadership of Tom Hicks and Henry Doublehead,
who both served on the UKB Council in later years. The "under cover"
Keetoowahs met August 23, 1976 and decided to reconstruct the Band
politically. They wanted to update the organic documents and laws, and set
a new election. They selected Tom Hicks as Chief, Henry Doublehead as Vice-
Chief, and Willie Jumper as Secretary-Treasurer. Reverend Sam Coudoin, Jim
Proctor (a current member of the UKB Council), and Steven Wilson were in
the group. The group visited communities throughout the 14 counties and
gathered about 1,000 adherents. They patterned their Constitution after
that of the old Keetoowah Society, Inc., and elected Officers and
Councilmen for life:
Tom Hicks, Head Captain/President
Henry Doublehead, Assistant Head Captain and Vice-President
Young Turtle, Cherokee Secretary
Charlotte Vann, English Secretary
Sam Chaudoin, Interpreter
Councilmen: Oscar Bolin; Jacob Goodrich; Jim Proctor; Buck Seabolt;
Sam Shell; William Still; Too Late Vann; Steve Wilson; William
Youngbird.
They approached Dennis Springwater, Muskogee Area Office Tribal Operations
Officer, whose grandfather was a UKB member, to discuss the matter. Hicks
wrote to Senator Bellmon, Interior Secretary Hickle, President Jimmy
Carter, Leslie Gay and Area Director Ellison asking for help, indicating
that they had been "under cover and helpless for some time:"
At one Time Kee-too-wah Did have The Voice withis Gov[ernment]. So
now again We asking [sic] and Pray we be Brought Back to where We was
one time and Be Recognized again. We Do have The Old Cherokee
Constitution, and according to That, We have Been Wronged in many
ways. There is some organization without our consent, So We asking
[sic] our U. S. Gov[ernment] to look into and take consideration. And
We Depend on you to present this in Writing Befor [sic] President
Ford. And We are asking our Gov[ernment] to Keep its Crafty hands out
of the Pockets of Kee-too-wah and The real Cherokees. May God help
us.[Letter, 15 September 1976, Tom Hicks to Hon. Henry Bellmon; Leeds
1992: 129, and fns. 95, 96, p. 129]
Hicks claimed Glory was neglecting his office and dividing the members.
Hicks declared that the UKB was failing to represent the full-bloods, and
that under Pickup and Glory, the Band had done nothing for the people for
nearly ten years.(Leeds 1992: 129) Neither John Hair, Councilman and then
Vice-Chief under Glory after 1970, nor other Council members, ever were
able to turn Glory around.
Les Gay told Tom Hicks on 13 January 1977 that the UKB remained
recognized, though Glory had neglected his duties and divided the Band
during his administration. Gay advised the UKB to work within the framework
of the UKB, just as Keetoowahs had done in the beginning of UKB
organization. Glory had attempted to call Council meetings and hold
elections in 1977, but had been unable to declare a quorum at meetings,
because Council meetings refused to cooperate in protest.(Letter, 14
January 1978, Area Director Ellison to Assistant Secretary for Indian
Affairs Forrest Gerard; Leeds 1992: 131) Near the end, Glory would call a
meeting and Council members would boycott, or the Council would call a
meeting and Glory would boycott in retaliation.(Leeds 1992: 131)
In 1978, the UKB Council continued to regroup. They lacked any
resources, lacked an office, lacked access to most of their records, lacked
cooperation from Muskogee Agency. In 1978, Glory called Field Solicitor
Harold M. Schultz, Jr., requesting a special election, to learn that 206
UKB members under the leadership of Tom Hicks, Henry Doublehead, Sam Hider,
Charlotte Vann, and Looney Gourd already had petitioned Area Director
Ellison to hold a special election and to update the membership
Roll.(Letter, 14 June 1978, Muskogee Area Director Ellison to Assistant
Secretary for Indian Affairs Forrest Gerard; Leeds 1992: 131; also, Letter,
29 January 1979, Muskogee Area Director Joe Parks to Assistant Secretary
for Indian Affairs Forrest Gerard; Leeds 1992: 132) The Tahlequah Acting
Superintendent determined that, considering the "chaotic state of the
internal affairs of the Band," the Department should call a special meeting
regarding UKB elections.(Letter, 8 June 1978, Tahlequah Acting Area
Director Royal Thornton to Muskogee Area Director Joe Parks; Leeds 1992:
132) At a special meeting in Talequah on 20 October 1978, the UKB selected
30 December 1978 for the election. Tom Hicks believed his English was too
poor, and decided not to run for Chief, so his followers threw their
support to Chief Jim Gordon (1979-1983), a long-time officer for the Indian
Health Service and opposition candidate against Ross O. Swimmer in the CNO
election, to run in his place. The UKB held elections that year with great
difficulty, and the election results only became available on 4 January
1979. Gordon succeeded Chief Bill Glory after the latter's death. John Hair
continued as Vice-Chief. The other officers included:
Vice-Chief, John Hair
Treasurer, Tom Hicks
Secretary, John Jumper
Council: Henry Doublehead, Jim Proctor, John Stand, Homer Flute, Leroy
Backwater, Ella Mae Munson, Oleta Kite, Sam Grayson and William
Wickliff.
The Band believed the integrity of their organization was renewed.(Leeds
1992: 132)
James L. Gordon was 5/8 Cherokee. He attended a commercial night
school and American Unitversity in Washington, D. C., and served in WWII
and the Korean Conflict. He served as Chief Auditor for the National Labor
Relations Board and then as Civilian Budget Officer for the Air Force, for
some 30 years in government service. He also served as Chief Financial
Manager for the IHS in the Department of Health, Education, and Welfare for
seven years. In 1970, he became Chief Executive Officer and Hospital
Administrative Specialist for the Deparmtnet in Oklahoma City, where he
retired in June 1973. Keeler named him an Advisory Board Member of the
Claremore Indian Hospital in 1972 and Ambassador of Good Will at the 1974
Cherokee National Holiday. Gordon, with decades of public service and
management skills to his credit, was well-qualified to serve as
Chief.(Leeds 1992: 135-136)
From the start, Jim Gordon and the UKB Council tried to provide
programs for fullbloods. The UKB started a housing authority. Gordon and
his new Council also met with IHS officials on 26 April 1979, and Gordon
appointed ten persons to the Claremore and Tahlequah Indian Hospital
Advisory Boards, and attempted to create a health plan for Band members.
IHS gave Gordon a list of funded programs, and Gordon reported to the IHS
delegation that the Office of Revenue Sharing had advised the UKB that
though CNO had been receiving the UKB's part of funds, the UKB now would be
able to recoup those funds from the Tribe's previous take. The IHS said
they recognized the Band and would obtain a formal opinion on the
matter.(Leeds 1992: 139)
Gordon also held that the Band was qualified under terms of the Indian
Self-Determination Act of 1974, Section 3(b). Gordon asked Andrew Skeeter's
accounting firm in Tulsa to help find grants. The BIA was somewhat
recalcitrant, but admitted that the Band had equal standing with CNO in
making policy determinations regarding their respective constituencies.
Swimmer, hoping to avoid collaboration with or competition from the UKB,
turned his back and hoped the UKB would fade away. It did not. On 3 March
1979, the Band resolved to request ISDA monies through Joe M. Parker,
Superintendent of Tahlequah Agency.(Letter, 16 February 1979 Superintendent
of Tahlequah Agency Joseph M. Parker to Tribal Operations Office, Muskogee
Area Office, BIA; in Leeds 1992: 137) The Council wanted $59,154 to
implement a planning and administrative services program to improve "the
capability of the Band to meet Self-Determination goals."
* * *
Principal Chief Swimmer and Cherokee Nation of Oklahoma assumed that
the UKB was so impoverished that the Band's name would not appear on the
Federal Register listing of acknowledged tribes when it appeared on 6
February 1979: however, the UKB was on the list.(Federal Register, Vol.
44, No. 26, Tuesday 6 February 1979, pp. 7235-7236) This, coupled with the
news that the UKB was applying for Self-Determination funds, was a red flag
to him. As Principal Chief of Cherokee Nation of Oklahoma, Swimmer wrote a
Letter to Senator Henry Bellmon on 27 April 1979 about the UKB. The
following paragraph set the tone for CNO actions toward the UKB to the
present:
There appeared on the scene about three months ago a new tribe of
Cherokee. Their organizational name is "United Keetoowah Band of
Cherokee." This resulted from a recent list of tribal organizations
published in the Federal Register on January 31, 1979.
Swimmer not only erred in reporting the date of the UKB's "appearance on
the scene," and omitted part of their name; for he also appeared to have
misunderstood entirely the purpose and implications of the Federal Register
notice, as his successor, Chief Mankiller, has done.(In a 26 January 1993
letter to governors in several states, Chief Mankiller erroneously cited
the UKB as a group of alleged Cherokee descendants in Oklahoma who were
petitioning for acknowledgment under the 25 C. F. R. 83 process) What
followed was Swimmer's attempt to rationalize his position that the UKB did
not "exist" as a federally-acknowledged tribal entity. He offered, "A short
history reveals that such an organization was formed pursuant to section 3
of the Oklahoma Indian Welfare Act."
Of course, as this narrative suggests, the problem with that short
history was that Swimmer could, in the name of expedient brevity, gloss
over the entire UKB history and leap to a profoundly dangerous conclusion
regarding the character of the Federal-tribal relationship between the U.
S. and the UKB under OIWA and IRA. Swimmer's peculiar point of view flies
in the face of the entire course of Cherokee and Keetoowah history, at
least since 1833, but the statement itself is woefully typical of anti-
Keetoowah rhetoric from Chiefs Swimmer and Mankiller. Swimmer reported:
The last Chief of this Band was Mr. William Glory who was elected by
their membership about ten years ago. The organization has been
dormant for at least that long with no meetings or general business
being conducted. For all practical purposes it was a shell
organization until this year.(Letter, 27 April 1979, Ross O. Swimmer
to Senator Henry Bellmon)
The first problem with Swimmer's denial of the UKB's continuous existence
between 1950 and 1979 is that, notwithstanding an incomplete paper trail,
the hard evidence proves the UKB was not a "shell organization" during
those years. There were regular and special UKB meetings and gatherings,
regular if sometimes problematic UKB elections, and numerous if
occasionally unpleasant interactions throughout these years between the UKB
and other units of government at every level. The UKB had economic
development, educational, and social welfare projects of all sorts, solo
and in concert with Cherokee Nation Executive Committee and others, during
the administrations of every Chief from John Hitcher to Jim Gordon. Jim
Gordon did not start the organization up to retaliate for losing the 1975
election, and Swimmer's accusation to that effect was a grotesque
distortion. Tom Hicks, Henry Doublehead, and Willie Jumper, along with
hundreds of other UKB members, pushed Glory out of office, and Hicks
retreated from the limelight in favor of Gordon because of Gordon's
qualifications. No statements or documents have surfaced dating earlier
than 1979 alleging, or purporting to prove, that the UKB had abandoned
tribal relations. The story that the UKB had been inactive between 1950 and
1979 slouched toward Tahlequah to be born only when it became expedient for
the administration of Principal Chief Ross O. Swimmer to make them.
Also, Swimmer and his close associates knew that most of the paper
trail regarding the UKB was not within the Band's control or possession,
and ruthlessly used this knowledge to their advantage. The individuals who
have embraced the Swimmer position appear to know little of the available
archival records regarding the UKB's history between 1833 and 1979, or else
believe the UKB incapable of finding them. Swimmer insisted that "the
membership of the Keetoowah Band will be identical to that of the Cherokee
Nation."(Letter, 27 April 1979, Ross O. Swimmer to Senator Henry Bellmon)
Only one utterly ignorant of the development of UKB enrollment and
membership policy could make this statement in honesty. For reasons
discussed in detail below, the "membership" list of the Cherokee Nation of
Oklahoma is not a roll, and the "dual membership" issue is a red herring.
Department of Interior correspondence regarding the UKB proves the
Department was aware of the internal political troubles of the UKB during
the 1970s, and that this strife virtually crippled its leadership. Today,
the BIA's Acknowledgment Branch views internal strife as clear evidence of
cohesiveness and continuity of community, precisely because intratribal
competition and struggle is perhaps the most intense and significant form
of social interaction. Finally, regardless whether the it were true that
the U. S. "forgot" the UKB between 1950 and 1979, U. S. Supreme Court has
held that even "long lapse(s) in Federal recognition" do not destroy the
power of the United States to deal with recognized tribes. United States v.
John, 437 U. S. 634, 652-653 (1978). As it is, the Commissioner of Indian
Affairs classified the UKB as fully, duly organized and recognized in 1972,
and in other determinations in 1977 and 1979, notwithstanding Swimmer's
efforts. In a Memorandum, 20 November 1979, Ms. Patricia Simmons, Tribal
Relations Specialist, to Chief, Branch of Tribal Relations, titled,
"Organizational Status of Federally Recognized Indian Entities," Ms.
Simmons presented findings at that date on the status of both the UKB and
CNO. Under category (p. 2) of "Officially Approved Organizations Pursuant
to Statutory Authority (Indian Reorganization Act: Oklahoma Indian Welfare
Act; and Alaska Native Act), Simmons found (p. 3), that UKB had a Council
organized under a Federal Corporate Charter. In contrast, under the
category, "Officially Approved Organizations Outside of Specific Statutory
Authority,"(p.7), Cherokee Nation's name appears ("with a Council," under
the 1975 Constitution). Ms. Simmons reiterated this conclusion in a similar
report in 1981. This finding reflects that the Administration still was
condoning, but without formally approving under OIWA and IRA, the
government of the Cherokee Nation of Oklahoma as approved by the "selected"
Principal Chief, whose selection by tribal voters was approved by the
Secretary.
The most absurd of Mr. Swimmer's contentions suggest an slovenliness
borne of haste, pique and vindictiveness:
The Cherokee Nation is the main government of the people and is
recognized by its constitution signed by the Secretary of the
Interior. The Keetoowah is an organization by operation of law which
should have died a natural death through inactivity for twenty
years.(Letter, 27 April 1979, Ross O. Swimmer to Senator Henry
Bellmon)
Taking these points sequentially, it is true that the Cherokee Nation has
a government, and that the majority of Cherokee Dawes Roll descendants who
belong to a federally-acknowledged entity belonged to Cherokee Nation of
Oklahoma. The creation of a constitution, even one adopted by a selective
straw ballot of members, can be a significant milestone under OIWA and IRA
in the process of full reorganization, if (and only if) its form and
content comport with requirements for a Constitution complying with the
intent of IRA as applied to Oklahoma tribes through OIWA. According to the
regulations governing reorganization under Section 3 of OIWA and IRA for
Oklahoma tribes in 1975, the first step toward reorganization is obtaining
the Secretary's approval of a Charter, before the call for an election to
approve the Constitution and By-laws, and the Charter. However, this was
not complete reorganization under OIWA and IRA; for to complete the
reorganization process, a tribe must comply with all the pertinent
provisions of OIWA and IRA, as both Swimmer and Gerard knew. Recall that
the Act of June 28, 1898, 30 Stat. 495, the Curtis Act, Section 26
stipulated:
That on and after the passage of this Act the laws of the various
tribes or nations of Indians shall not be enforced at law or in equity
by the courts of the United States in the Indian Territory.
Cherokee Nation of Oklahoma remained a tribe by operation of law alone
after 1906, though the Department had found by 1934 that effectively,
Cherokee Nation had died a natural death.
Swimmer's most appalling statement was that the UKB was created as an
expedient to meet the needs of Cherokee Nation, and therefore:
Its primary purpose was to borrow funds for relending purposes,
but when the Cherokee Nation survived the termination policies of the
1950s there was no longer any need for the Keetoowah
organization.(Letter, 27 April 1979, Ross O. Swimmer to Senator Henry
Bellmon)
First, Principal Chief Keeler and the attorney Earl Boyd Pierce created the
myth that the UKB's sole reason for being was to borrow funds for relending
purposes. These men supported their claims by creating a paper trail making
that allegation some months after the Cherokee Convention of 30 July 1948,
when Pierce officially gained approval to represent Cherokee Nation in
claims litigation, to serve the purposes of Principal Chief W. W. Keeler.
The Interior Department's 1953-1954 correspondence rejecting the UKB's
pleas to have participatory access in loan programs in the years
immediately after the UKB reorganization proves that Swimmer's claim was
erroneous. In the first place, the UKB was not even eligible to participate
in the loan programs until the rules respecting access to revolving credit
program funds changed in 1953, and even then, the UKB was unable to
participate in the program, due to the refusal of the Area Director to
support the Band's efforts in any way. The OIWA/IRA loan program was a
washout as far as the UKB was concerned.(Letter, 5 January 1954, Area
Director W. O. Roberts to UKB Clerk Gus Hummingbird) According to Pierce's
correspondence, he knew the UKB was having trouble gaining access to the
revolving credit program funds, but he did not press the issue after
Roberts withheld support.
Since the UKB's reorganization process had occurred at the dawn of
termination, the Band was extremely fortunate to have survived at all. The
UKB continued its activity alongside the Cherokee Nation or Tribe, usually
in what appeared to be a reciprocal and cordial relationship. The UKB
Council's minutes from 1939 to the present prove this; and indeed, Cherokee
Nation's own Executive Committee's own minutes prove this. In his 1979
letters to Bellmon and Gerard, Mr. Swimmer simply begged the question in
concluding that the Band had been inactive for over 20 years, while
offering no proof that the tribe or its members had abandoned tribal
relations, voluntarily or otherwise. Regardless of the degree of the UKB's
tribal activity during the termination era, the Band is recognized,
according to Federal-Indian legal authorities governing purported voluntary
abandonment of tribal relations.
* * *
Mere internal changes in form, even assimilation, are not sufficient
to declare a recognized tribe to be unrecognized. It is for Congress to
decide when changes warrant removal of Indian tribes from their special
status. The changes in the UKB's form of government in compliance with OIWA
and IRA are well-documented, along with Federal approval or disapproval of
those changes. Tribal deterioration, controversies, inactivity, "failure to
thrive," or even of periods of non-continuous exercise of Federal
jurisdiction, cannot abrogate the Federal supervision once it is assumed.
In United States v. John, 437 U.S. 634, at 652-653 (1978), Mississippi
argued that the Mississippi Choctaws had become fully assimilated into the
political and social life of the state and that the Federal government had
abandoned its supervisory authority over these Indians. The U. S. Supreme
Court held that: "Neither the fact that the Choctaws in Mississippi are
merely a remnant of a larger group of Indians, long ago removed from
Mississippi, nor the fact that federal supervision over them has not been
continuous, destroys the federal power to deal with them." The U. S.
Supreme Court declared in United States v. Holliday, 70 U.S. (3 Wall.) 407,
419 (1865), that the matter of Federal acknowledgment was a political
question for Congress and the Executive to decide, and that: "If by them
those Indians are recognized as a tribe, this court must do the same." This
decision applies as much to the UKB as it does to the CNO.
Once it is shown that the Federal government historically recognized
a tribe by treating it as a sovereign, as the U. S. has done since at least
1946 by statute, a presumption arises that Federal recognition continues.
The heavy burden of rebutting the Tribe's arguments, proving a Tribe's
extinction falls on the party denying continuing existence or recognition.
The Secretary of the Department of the Interior cannot terminate or
redetermine a previously acknowledged Federal-tribal relationship unless it
can show by "clear, cogent and convincing evidence" that either: (1)
Congress expressly intended to abrogate the relationship with the tribe, or
(2) the tribe has voluntarily and knowingly abandoned its status as a
tribe. Kansas Indians v. U. S., 72 U.S. 737 (1867). This presumption of
continued recognition is mandatory in the case of the UKB. The language of
the UKB Charter and Departmental decisions prove the UKB had treaty
relations with the United States. The 1946 Act proved Congress had
recognized the UKB, when established a means for the UKB to obtain an OIWA
Charter and to reorganize under IRA. The UKB, upon reorganization, existed
as a recognized "tribe" within the general provisions of the OIWA and the
IRA without contradiction until 1979. This narrative has quoted from only
those few sets of the Minutes of the UKB Council needed to present this
case, but these Minutes demonstrate tribal cohesiveness and continuity of
activity with no significant breaks from 1950 to 1979. No one has argued
any break in UKB activity has occurred since then. In order for the CNO to
validate their arguments against the UKB, they must establish a case for
express congressional termination (which has not occurred), or prove the
UKB government, using proper authorities, voluntarily abandoned its tribal
relations through some definite act or set of actions, by some certain
date. For their own various reasons, the UKB, other acknowledged tribes,
legal scholars, the interested voters and taxpayers must know why Congress
refused to require Cherokee Nation of Oklahoma to carry its burden in
meeting these tests between 1979 and 1993.
The drive to prevent Federal tribal acknowledgment of a number of
groups petitioning for acknowledgment through the 25 C. F. R. 83 process
has made it possible for "interested parties" to attack the status of
recognized tribal entities. The entities in question have long enjoyed the
Federal-tribal relationship and in most cases, their names were published
in every Federal Register listing from 1979 to 1988, when the Secretary
stopped publishing them. The demands of Chiefs Ross O. Swimmer and Wilma
Mankiller that the UKB defend their claims to tribal status by submitting
to the Federal tribal acknowledgment process prescribed at 25 C. F. R. 83
proves without question that the process is perceived as a potent tool for
forcing previously-recognized tribes out of the Federal-tribal
relationship.
In Roger St. Pierre, et al. v. Commissioner of Indian Affairs, 89 IB
132 (1982), the Interior Board of Indian Appeals ruled:
Examination of history, purpose, working and structure of the
Indian Reorganization Act leads to the conclusion that Congress
intended to impose specific trust responsibility on the Secretary of
Interior and the Bureau of Indian Affairs with respect to tribes
organized under the Act; government to government relations of the
United States and Indian tribes organized under the Act are governed
by the Act and specific trust responsibility it engenders.
By 1979, the BIA refused to apply this rule to the UKB. Also, in the case
of the UKB, the BIA refused to apply the rule of Logan v. Andrus, 457
F.Supp. 1318 (1978): "an administrative official cannot exercise
legislative power under the guise of regulation." The policy arguments
supporting the termination of the UKB largely have to do with matters of
administrative convenience, from the standpoint of the U. S. From the
Cherokee Nation's side, the goal is the elimination of any potential
economic and political competition within shared territories. CNO has
approximately the same adversarial relationship with regard to the UKB that
most tribes have with regard to the states within which they reside. The
CNO employs almost precisely same arguments against having an alien
sovereign functioning within its hypothetical boundaries as Georgia used
against Cherokee Nation in 1831. CNO's actions against the UKB therefore
are ultimately self-contradictory and self-destructive, because it was the
success of similar arguments, applied by territorial governments against
the old Cherokee Nation, which led to the Curtis and Dawes Acts.
When certain distinguished members of Congress recently judged the UKB
by the undocumented claims of prestigious and influential Cherokee Nation
officials and Federal bureaucrats, they refused to judge the UKB's
reorganization by the the record. They ignored the statements of loyal
officers of the UKB government, and of persons who participated in the
reorganization of the UKB prior to Earl Boyd Pierce's involvement with the
Principal Chiefs of Cherokee Nation. They ignored writings of individuals
dating from a date that those individuals had no plausible ulterior motive
to support the UKB. They ignored judicial precedent, canons, and doctrines
of Federal-Indian law, cited above.
The UKB, as an organized and recognized tribe, that survived the 1950s
Termination Policy, as the 5 January 1954 Letter from Roberts to
Hummingbird shows. As history teaches, notwithstanding the 30 July 1948
"election" of a Cherokee Nation Executive Committee, the Secretary never
approved the resolutions of that Convention. Cherokee Nation of Oklahoma
does not exist as a tribe organized under OIWA and IRA. Cherokee Nation's
status truly has not changed as a greatly diminished, though not
terminated, sovereignty since 1970. The test of Cherokee Nation's
sovereignty is to find a single incident in which the Cherokee Nation of
Oklahoma Tribal Council, Arbitration Panel or Courts ever successfully
challenged the Principal Chief, or held the Principal Chief accountable for
a governmental decision do to alleged violations of the 1975 Cherokee
Nation of Oklahoma Constitution, or other CNO laws.
The Indian Service took the position during the Termination years that
the Cherokee Tribe was well on its way toward abandoning its tribal
relations voluntarily, leaving little damage for Congress or the Secretary
to do, except in the case of the only functioning Cherokee organization:
the UKB (recall Area Director Roberts's 1953 report to the House Committee
on Interior and Insular Affairs, regarding Cherokee Nation). Fortunately,
it was not within the powers of the Principal Chief of the CNO either to
recognize or to terminate the UKB, because unlike any of the CNO's agencies
or subdivisions, the UKB was not under his jurisdiction. Knowing this,
Swimmer did the only thing he could, turning to Senator Bellmon to dissolve
the UKB, suggesting:
The only way of avoiding serious conflicts and complications for
all Cherokees is for Congress to act in accordance with Article 8 of
their charter which says their charter may be revoked by act of
Congress.(Letter, 27 April 1979, Cherokee Nation Principal Chief Ross
O. Swimmer to Senator Henry Bellmon)
Had Swimmer been entirely correct in implying that the entire Keetoowah
reorganization venture had been a makeshift ploy to hold a space open so
the Cherokee Nation of Oklahoma could squeeze through the eye of the needle
and avoid the inconvenience of reorganization, there would have to have
been a massive and improbable conspiracy from at least 1937 to 1975,
involving the Oklahoma congressional delegation, dozens of Department of
Interior employees, the GAO, the OMB, the Department of Justice, the Indian
Claims Commission, the presidential appointees to the office of Principal
Chief of Cherokee Nation of Oklahoma, and perhaps three chiefs of the UKB.
Such a conspiracy would have to have been a better-kept secret than the
Manhattan Project. Between Muskogee, Washington, D. C., and all points
between, surely someone would have disclosed such a sprawling and byzantine
plot at some time between 1937 and 1979. Swimmer's inadvertently self-
accusatory "conspiracy theory," alleging that the UKB had been created to
serve temporary purposes of Cherokee Nation's Principal Chiefs, and that
the UKB had expired by March of 1979, would have to implicate former
Principal Chiefs Jesse B. Milam and W. W. Keeler, as well as Swimmer
himself. The irony is, while claiming the UKB Charter, Constitution and By-
laws have no legal effect, Cherokee Nation of Oklahoma has evoked Article
VIII of the Charter, urging Congress to use the language of that very
viable Article to revoke the Band's Federal-tribal relationship.
As it was, there was an entirely different kind of plotting going on
from time to time to stop the UKB reorganization, or its completion. Some
of the key players in this plotting included: Superintendent of the Five
Civilized Tribes Agency, W. O. Roberts, and various others in the Indian
Service, from time to time; various leaders of Keetoowah factions,
including, sometimes, Levi Gritts himself; the Cherokee Nation Executive
Committee and the Principal Chiefs of Cherokee Nation of Oklahoma from
Milam to Swimmer; and certainly, Earl Boyd Pierce, to whom Swimmer referred
Bellmon for further information. However, the agendas of these predators
were somewhat haphazard and poorly realized.
* * *
All of the problems in Swimmer's story had to be known to Mr.
Swimmer when he made his claims that the UKB had been a "shell
organization" throughout the 1970s. What is profoundly disturbing is that
neither Senator Bellmon, nor Assistant Secretary for Indian Affairs Forrest
Gerard, required any proof from Swimmer. Surprisingly, the Minutes of the
Cherokee Nation Executive Committee, the issues of the Cherokee Advocate
(hardly a neutral newspaper) and numerous other sources demonstrate the
falsity of Swimmer's claim that the UKB had abandoned its tribal relations
voluntarily during this period. These records are and were certainly
available to the U. S. government. The obvious method to use in testing
Swimmer's claim (that the UKB was a "vehicle" for preserving Cherokee
Nation and nothing more) is to examine analytically the records of UKB
reorganization.
Nothing in the record of the UKB reorganization process evinces such
a "benign conspiracy" ever occurred. The Indian Office was circumspect to
a fault in assuring that the UKB reorganization complied in every niggling
and piddling respect with statutes and regulations. Principal Chief of
Cherokee Nation, Jesse B. Milam, participated hardly at all in the UKB
reorganization process, though the Keetoowah Society, Inc., had adopted
him. Even when Area Director W. O. Roberts attempted to solicit Milam's
services in fact-finding, planning and arbitration involving UKB
reorganization, Milam declined even to attend meetings and obviously
harbored no interest in reorganization itself. Nothing in the record
suggests that Department officials, members of Congress, or least of all,
the UKB, intended to organize an entity as any expedient to serve the ends
of the Principal Chief of Cherokee Nation, such as obtaining loans for
Cherokee Nation or Tribe.
The Cherokee Nation or Tribe's Executive Committee did not exist when
the UKB organization process began, and W. W. Keeler's first significant
participation as an adult in Cherokee affairs came when he was selected to
join that Committee at the 1948 Cherokee Convention. Milam's role in
creating the Committee was so ham-handed that the Keetoowah Society, Inc.,
disowned him. For their part, having suggested the creation of the
Executive Committee to share Milam's burdens, the Commissioner and
Secretary never approved the 1948 Cherokee Convention's Resolutions,
including that one creating the Committee. While the Chiefs and Executive
Committee of Cherokee Nation tended to use the UKB for their own purposes,
they had no significant role in creating it, though UKB members had a role
in the creation of the Executive Committee, and even served on it. However,
it is clear that having used the UKB for their own purposes from the 1950s
to the 1970s, and having reached the point of diminishing returns, Swimmer
wanted the UKB gone.
* * *
The truth is, after the Bellmon Bill and the Groundhog and Harjo
cases, the Principal Chiefs of Cherokee Nation felt there was no longer any
need for the Keetoowah organization. It now even appeared it was possible
for a new Cherokee Nation to reorganize under OIWA and IRA without a
special congressional dispensation, though the 1937 finding that the
Cherokee Nation of 1906 was ineligible to reorganize under OIWA as such
still appeared valid. However, a new constitution and charter complying
with IRA and OIWA would change the old order dramatically, because this new
Cherokee Nation would constitute an entirely distinct entity, with
authority only over properties acquired under IRA. The Principal Chief
looked for ways to gain the benefits of IRA without incurring the burdens
and liabilities, including loss of personal authority in the face of a
truly representative and democractic government, and other sea-changes
reorganization would impose on the Principal Chief. The UKB still had to
deal reluctantly with the Principal Chief of Cherokee Nation, because the
latter had custody of all Cherokee descendants' property, including the
property of the UKB, after the death of the Cherokee property co-Trustee,
Jim Pickup, in 1967. The UKB only acquired a degree of control or
consultation with regard to their own property rights and access to
services by obtaining a voice on the Executive Committee in 1970. The
attempts of the UKB to consult with CNO, and to require CNO to provide
concurring action, were things Ross O. Swimmer and W. W. Keeler found
objectionable.
Stating the obvious, every Chief of the UKB must work within the
limits of the Charter, Constitution and By-laws. Likewise, the laws of the
UKB which comply with the UKB Constitution, By-laws and Charter, are
mandatory for the Secretary of the Interior and his/her employees, except
where Congress imposes direct Secretarial approval authority by statute.
The Department's decisions regarding these matters are forty years old, and
have been reaffirmed repeatedly. In contrast, as long as the CNO does not
reorganize under the OIWA and IRA, the only restraint on the power of any
Principal Chief of Cherokee Nation of Oklahoma and the Secretary of the
Interior with regard to CNO governmental acts is that voters may not to
"select" or "re-select" that person as Principal Chief. The Cherokee Nation
of Oklahoma's "government-by-consensus" is primarily a "government-by-
consultation" of a selected Principal Chief with a Counsel. Requirements
for participation in self-governance pilot projects include strict
compliance with Federal laws and regulations governing tribal organization
and fiscal accountability. In the wake of the Muscogee Creek Nation
example, why was Cherokee Nation of Oklahoma not required to reorganize
under OIWA and IRA as a condition of participation in self-governance
projects? The laxity with which the BIA has interpreted and administered
OIWA and IRA in the CNO case is stunning.
* * *
Senator Bellmon referred Ross Swimmer's request to dissolve the UKB by
revoking their Charter to the Director of the Office of Indian Services,
who responded:
In that the United Keetoowah Band organized pursuant to a Federal
law, . . . it clearly has the status of a separate tribal entity.
Included among the objectives of the band's constitution is to provide
for the exercise of governing authorities . . .
Mr. Swimmer proposed Congressional action to revoke the band's
corporate charter as a means of resolving the problem. The band would
remain a separate entity. . . . unless Congress took similar action to
abolish the band's constitution and bylaws.(Letter, 3 July 1979,
Director of the Office of Indian Services, to Senator Henry Bellmon)
Cherokee Nation, under Swimmer, did not want to allow the UKB Council
virtual veto authority over programs serving both the UKB and registrees in
Cherokee Nation of Oklahoma, which the UKB could exercise under P. L. 93-
638 by withholding a concurring resolution to support contracting
proposals. Even before the passage of P. L. 93-638, Chief William Glory's
participation in the Executive Committee and Cherokee programs generated
frictions between Glory and Principal Chief Keeler in the early 1970s,
apparently because Glory refused to give Keeler a blanket resolution of the
kind the Executive Committee and the Elected Community Representatives had
given in the past. These resolutions always had allowed Principal Chief
Keeler to engage in a variety of undertakings without significant
consultation. The fact is, the UKB Council never authorized any delegation
of authority to Keeler. Keeler clearly resented the autonomy of the UKB,
and took umbrage at the refusal of the UKB Council to delegate even to its
own Chief the kind of authority Keeler wanted for himself. These inter-
tribal conflicts finally led to the expulsion of Glory from his office at
the Cherokee Nation complex. In 1975, during the transition period in which
Keeler was preparing the way for Swimmer's succession as Principal Chief,
P. L. 93-638 appeared on the scene. At this point, the conflict between CNO
and UKB -- over CNO's contracting authority under P. L. 93-638 as sole
"tribal organization" for both CNO and UKB -- became inevitable.
P. L. 93-638 (1975), Section 4, as originally drafted contained
definitions for the purposes of the Act:
The Subcommittee amended the definition of "Indian tribe" to include
regional and village corporations established by the Alaska Native
Claims Settlement Act. The Subcommittee amended the definition of
"tribal organization" to provide for cases where the contract of a BIA
or IHS service which has, under Federal operation, served more than
one Indian tribe. United States Code Congressional and Administrative
News, 93rd Cong., 2nd Sess., Vol. 4, p. 7776;
further, Section 104(a) authorizes the Secretary of the Interior:
to make grants to tribal organizations in several areas to facilitate
their contracting under the terms of section 102. United States Code
Congressional and Administrative News, 93rd Cong., 2nd Sess., Vol. 4,
p. 7777.
As codified and redesignated at 25 U. S. C. Sec. 450b., "Indian tribe"
means:
(d) . . . any Indian tribe, band, nation, or other organized group or
community, including any Alaska Native village or regional or village
corporation . . . . which is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians [former par. (a) redesignated (d) in Pub.L.
100-472, Sec. 103];
while "Tribal organization" means:
(l) . . . the recognized governing body of any Indian tribe; any
legally established organization of Indians which is controlled,
sanctioned, or chartered by such governing body or which is
democratically elected by the adult members of the Indian community to
be served by such organization and which includes the maximum
participation of Indians in all phases of its activities: Provided,
That in any case where a contract is let or grant made to an
organization to perform services benefitting more than one Indian
tribe, the approval of each such Indian tribe shall be a prerequisite
to the letting or making of such contract or grant [former par. (c)
redesignated (l) in Pub.L. 100-472, Sec. 103].
The Department of the Interior's report on the proposed P. L. 93-638 by
Commissioner of Indian Affairs Morris Thompson, addressed to Hon. James A.
Haley, Chairman, Committee on Interior and Insular Affairs, House of
Representatives, Washington, D. C. (cited at United States Code
Congressional and Administrative News, 93rd Cong., 2nd Sess., Vol. 4, p.
7786) indicates the Department's understanding of "Indian tribe" and
"tribal organization" as used in Title I of the Act. Noting the "concerns
of some Indian leaders (see April 1, 1974, Congressional Record, pages S.
4818 and S. 4819) that contracts under sections 102 and 103 could be
entered into with Indian organizations not approved by the tribal
government or governments whose members would be served under the
contract," Thompson recommended:
It should be noted that under these sections, the Secretaries are
directed "upon the request of any Indian tribe to enter into a
contract or contracts with any tribal organization of any such Indian
tribe" . . . . The request of an "Indian tribe", as defined in section
4(b), for a contract must be made by the governing body of the tribe
and the contract must be with a "tribal organization [which term is
defined in section 4(c)] of any such Indian tribe." However, where a
contract could involve programs or activities serving several tribes
(such as in the case of western Washington, Nevada, the New Mexico
Pueblos, and other places where a Bureau of Indian Affairs Agency
serves more than one tribe), the present language of the sections
could result in one or more of the tribal governments requesting that
a contract be entered into with a "tribal organization" when such
contract or organization may be objectionable to other tribal
governments whose members would be served under the contract. To
remedy this possible problem, we suggest that language such as the
following be added at the end of the section 4(c) definition of
"tribal organization": "Provided, That, for the purposes of each
specific request for a contract under sections 102, 103 or 104 of this
Act, the term includes only an organization which each Indian tribe to
be served under such contract or grant either (1) has approved (or
specified their request) for such contract or grant, or (2) has not
objected to within thirty days of notice from the appropriate
Secretary of his receipt of the request for such contract or grant."
Nothing in the Act itself even requires that the definition of "Indian
tribes" is limited to those tribes listed in the Federal Register, or to
historical, inherently sovereign recognized tribes. Limitations, however,
have been created through administrative interpretation by the BIA.
42 Code of Federal Regulations 36.204, governing the U. S. Public
Health Service contains the following definitions:
(f) Indian means a person who is a member of an Indian tribe.
(g) Indian tribe means any Indian tribe, band, nation, rancheria,
Pueblo, colony or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (85 Stat. 688) which is
recognized as eligible by the United States Government for the special
programs and services provided by the United States to Indians because
of their status as Indians.
(h) Tribal organization means:
(1) The recognized governing body of any Indian tribe; or
(2) Any legally established organization of Indians which is:
(i) Controlled, sanctioned or chartered by such governing body or
bodies; or
(ii) Democratically elected by the adult members of the Indian
community to be served by such organization and which includes the
maximum participation of Indians in all phases of its activities.
It is important to compare how the Department of the Interior has applied
the definition sections in the Self-Determination Act to the way such
eligibility definitions are being applied and interpreted in other cases
and legislation. The BIA includes Alaska native regional profit
corporations within the meaning of "Indian tribe," while excluding certain
native regional nonprofit corporations, consistent with explicit statutory
language and legislative history. In 1987, the Secretary of the Department
of the Interior found that an Alaska nonprofit regional corporation,
established to promote physical, economic, and social well-being of Alaska
natives in the Anchorage area, was not an "Indian tribe," for purposes of
the Act, where the Secretary never had found previously that the
corporation had the status of an historical Indian tribe or adult Indian
community.[Cook Inlet Native Association v. Bowen, C.A.9 (Alaska) 1987, 810
F.2d 1471] In individual cases, the Secretary of Interior has declined to
recognition individuals of one-half or more Indian blood.
Federal tribal recognition and eligibility determinations have varied,
depending on the vagaries of the statute or regulation in question. Though
they not directly related to eligibility to tribal participation in P.L.
93-638 programs, some recent Federal administrative and judicial decisions
are instructive. In Abenaki Nation of Mississquoi, et al. v. Hughes, et
al., No. 2:92-CV-279 (United States District Court, D.Vt., Oct. 22, 1992),
a case applying the National Historic Preservation Act [16 U. S. C. Sec.
470 (1992)] and the Native American Graves Protection and Repatriation Act
[25 U. S. C. Secs. 30001-3013 (1992)], Abenaki Nation sued the Army Corps
of Engineers and the Village of Swanton seeking to enjoin the latter from
proceeding with a construction project under these Acts. NHPA defines
Indian tribe as "the governing body of any Indian tribe, band, nation, or
other group that is recognized as an Indian tribe by the Secretary of the
Interior. . . . " [Section 800.2(g)] Unlike the UKB, the name of the
Abenaki Nation was not and is not found in the latest published list of
recognized tribes [53 F.R. No. 250, p. 52829, et seq. (12/29/88)].
In Abenaki, plaintiffs offered no evidence appeared showing that the
Secretary ever recognized the tribe. Deferring entirely to the Secretary of
the Department of the Interior, the District Court dismissed the tribe's
claims, finding that Secretary of Interior does not recognize the tribe as
an Indian tribe, though the tribe received services from Federal agencies
other than the BIA. Therefore, the United States District Court in Vermont
concluded that the Corps did not violate the notice requirements of its
regulations or the National Historic Preservation Act. The reasons for
refusing to defer to a clear statement from the Secretary as to a tribe's
status generally are politically motivated. That certainly is true for the
case of the UKB/CNO dispute.
Many acknowledged tribes with far less documentation of continuous
existence or cohesiveness are not challenged, as long as their names appear
on the Federal Register list of acknowledged tribes. As the Department of
the Interior applies progressively harsher standards of proof on
unacknowledged groups, it is not supposed to apply those tests to a tribe
which already is acknowledged. Such "viability" tests, though increasingly
common, lack any congressional authorization. However, members of Congress
accept without question or review the claims of CNO against the UKB's
status, and some offer the UKB case as justification for opposing any
significant acknowledgment reform and or legislative status clarification.
It appears that some also support the shrill and irrational demands of
Principal Chief Wilma Mankiller that the UKB submit to the 25 C. F. R. 83
process in order to maintain its status.
* * *
During this period, the question of some degree of overlapping or
concurrent UKB and CNO membership finally exploded, because CNO wanted to
be the sole contractor of P. L. 93-638 programs within the 14 northeastern
counties of Oklahoma. On 29 May 1979, responding to the UKB's request and
complying with their Federal Charter, Acting Deputy Commissioner Martin E.
Seneca issued a directive addressing the problem of dual or concurrent
membership in the UKB and the CNO, without addressing CNO's continuing
avoidance of reorganization under OIWA and IRA:
It is true that the United Keetoowah Band is a tribal entity separate
from the Cherokee Nation, this resulted in 1950, when the Band
organized under the Oklahoma Indian Welfare Act. Since that time the
Cherokee Nation has adopted a Constitution approved by the
Commissioner. Accordingly each tribe has a right to independently deal
with the Bureau as well as other agencies the same as any other
Federally recognized tribe. This was confirmed by including the names
of both tribes on the list of tribal entities recognized as having a
government to government relationship with the United States. That
list appeared in the February 6, 1979 issue of the Federal
Register.(Letter, 29 May 1979, Acting Deputy Commissioner Martin E.
Seneca to Muskogee Area Director, re: status of the UKB)
Seneca had obtained full support from all the line officers in the
Department before issuing his decision. By the time Seneca received the
draft letter, five or six signatures from the Area Office to Central had
surnamed.(Leeds 1992: 155) Seneca stated that both entities would have to
amend their constitutions in order to eliminate the problem of overlapping
membership. Alternatively, and in the interim, Seneca allowed both the UKB
and the CNO to apply for grants from and contracts with BIA under P. L. 93-
638 and other programs; provided, however, that both entities offered
concurring resolutions relating to the approval of such grant prior to the
awarding of any grant or contract to either entity. The only other
alternative would be direct management of programs by the BIA. Note that 25
C. F. R., Ch. 1, Subchapter M, Part 271 - Contracts under Indian Self
Determination Act, at Section 271.2(r), stipulates:
That in any case where a contract is let to an organization to perform
services benefitting more than one Indian tribe, the approval of each
such Indian tribe shall be a prerequisite to the letting of such
contract.
This provision applied and interpreted 25 U. S. C. Section 450b(c). Seneca
realized these provisions were controlling here. Finally, Seneca stated
that if concurring resolutions were not provided, that the requested
programs would have to be administered directly by the Bureau of Indian
Affairs, pending the resolution of dual or concurrent membership.(Letter,
29 May 1979, Acting Deputy Commissioner Martin E. Seneca to Muskogee Area
Director, re: status of the UKB)
Underscoring Seneca's finding, the Central Office - Indian Services,
BIA advised Senator Bellmon:
In that the United Keetoowah Band organized pursuant to a federal law
(the Oklahoma Indian Welfare Act of 1936), it clearly has the status
of separate tribal entities. Included among the objectives of the
Band's Constitution is to provide for the exercise of governing
authorities.
Mr. Swimmer proposed Congressional action to revoke the Band's
Corporate Charter as a means of resolving the problem. The Band would
remain a separate entity, however, unless Congress took similar action
to abolish the Band's Constitution and By-laws.(Letter, 3 July 1979,
Director, Office of Indian Services, Central Office, to Senator Henry
Bellmon, re: status of the UKB)
* * *
On 4 August 1979, the UKB extended membership rights for a time to the
adopted Shawnees and Delawares on the Cherokee Dawes Commission Roll. The
Membership Committee accepted documentation other than a BIA C. D. I. B. to
show Cherokee descent, knowing that the Cherokee Dawes Commission Roll was
not a UKB Base Roll, but only one among a variety of censuses and rolls,
among other sources, from which the Band could admit geneaological
data.(Leeds 1992: 144) Swimmer used this turn of events to declare that the
UKB and the CNO had the same Base Roll. This was a deliberate lie.
* * *
The UKB demanded that the BIA cease negotiating contracts with CNO
without a concurring resolution from the UKB.(UKB Resolutions 06-02-79-05
and 06-02-79-06) On further consultation with the BIA, the UKB responded to
Seneca's directives, passing additional resolutions demanding that IHS
ceases funded programs with CNO until the Band had proper notice or had
passed proper concurring resolutions. The second resolution demanded that
CNO's Youth Work-Learn program require 1/4 blood quantum for participation,
eligibility for UKB members, and notice to the UKB of all actions and
reports.(UKB Resolutions 07-07-79-07, 07-07-79-08) CNO refused to
acknowledge receipt and killed the program. Cherokee Nation of Oklahoma
Resolutions R11-79 and R12-79 of 14 July 1979 authorized Swimmer to use
legislative or judicial means to modify the authority of the UKB to
restrict their ability to compete or interfere with CNO.(Leeds 1992: 147)
Stated bluntly, this was a declaration of open war and a clear demand that
Congress terminate the UKB. Agnes Cowan, Ben Fishinghawk and Sam Ed Bush
challenged the ethics of this move. Cowan though the matter could have been
resolved if the CNO had cooperated in efforts to form a compromise in a
meeting the BIA hosted on the matter. Swimmer's rejoinder was that Cowan
had sworn her allegiance to CNO, and that she should sit down and shut up.
After the Assistant Secretary and Senator Bellmon afforded Swimmer no
easy solution, the CNO filed the action, Cherokee Nation of Oklahoma vs.
The Secretary of the Department of the Interior and the United Keetoowah
Band of Cherokee Indians in Oklahoma in the U. S. District Court for the
Eastern District of Oklahoma, alleging:
No programs of any kind or character have been undertaken; the band
has been dormant for all purposes until the Spring of 1979.[Cause No.
79-220-C, Complaint, at p. 2]
This statement was blatant perjury. Repeating Swimmer's claims that the UKB
had abandoned tribal relations and powers, CNO alleged:
If . . . the Band even had such authority [i.e., veto power over
programs] it waived the right to take [such action] by long time
acquiescense in the programs of the [Cherokee] Nation.[Cause No. 79-
220-C, Complaint, at p. 3]
CNO's bid to stop the UKB from disqualifying the CNO from consideration
under the Indian Self-Determination Act resulted in a 130 day injunction
from Judge H. Dale Cook, covering only the continuation of funds
appropriated for ongoing programs.(No. 79-220-C, 17 August 1979, Order for
Temporary Injunction; Leeds 1992: 149)
Turning to legislative avenues, Swimmer asked Congressman James R.
Jones to sponsor legislation drafted by the Minority Counsel of the Senate
Select Committee on Indian Affairs reading:
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
that Section I of the Act of August 10, 1946, relating to the status
of the Keetoowah Indians of the Cherokee Nation of Oklahoma, is hereby
repealed.(Letter, 9 October 1979, Ross O. Swimmer to Hon. James R.
Jones, U. S. House of Representatives)
The BIA was receptive regarding Swimmer's bid for support from them for the
legislation (Letter, 9 October 1979, Acting Deputy Commissioner Theodore C.
Krenzke to Ross O. Swimmer) Mrs. Boren and Mrs. Swimmer were sorority
sisters in college, and Mrs. Jones was on the board of the First National
Bank in Tahlequah while Swimmer was President. Bellmon was a long-time
political patron. The fix was on.
Since the resolution of the UKB/CNO crisis was uncertain,
representatives of the UKB Council met Assistant Secretary Gerard in
November 1979, and Gerard assured the UKB that they would receive all
funding to which the Band was entitled as an autonomous federally-chartered
tribal entity. On Gerard's advice, Chief Jim Gordon attempted to work
things out with Chief Swimmer in a conciliatory letter, to no avail. Gordon
reminded Swimmer of the UKB's status and sources of power, when the UKB
attempted to defend their own interests while avoiding any harm to the
Cherokee people as a whole, even working cooperatively "with advice,
consent and support for tribal programs" as Keeler chose to pursue them:
Over the years the United Keetoowah Band has not only worked with
the Cherokee Nation of Oklahoma, but in some cases, such as the
handling of the early claims cases and the initial planning of the
tribal complex, stood in place of the Cherokee Nation of Oklahoma out
of pure necessity. There is no reason why both entities cannot
continue working together now.
It now seems, however, that after all these years of cooperation,
the United Keetoowah Band finds itself being treated as inferior when
all that it is asking is that it be afforded its legal rights to
operate under the law the same as the Cherokee Nation of Oklahoma.
As a result of the Office of the Commissioner of Indian Affairs
re-affirming the rights of the United Keetoowah Band to operate as a
separate federally recognized tribe, rumors and untruths have been
widespread. Rumors have been heard that the United Keetoowah Band is
trying to exercise a veto power over the Cherokee Nation of Oklahoma
programs. In fact, the United Keetoowah Band asks only that the
Cherokee Nation of Oklahoma give it the same consideration that it has
given to the Cherokee Nation of Oklahoma, which is, by the way,
mandated in these instances by Congress and Bureau of Indian Affairs
Regulations.
Likewise, rumors have been heard that if concurring resolutions
for contracted programs are not given by the United Keetoowah Band of
the Cherokee Nation of Oklahoma the Cherokee people will lose the
benefit of these programs. That simply is not true. In the event that
concurring resolutions are not voted by the United Keetoowah Band,
then the BIA will step in and continue to provide the same benefits to
all of our Cherokee people. Programs other than BIA self-determination
are, and remain, unaffected.
As separate tribal entities, we must sit down soon in a joint
council meeting between the United Keetoowah Band and the Cherokee
Nation of Oklahoma to work out our problems. Both entities can then
move forward and continue with what should be their only purpose, to
work for the benefit and well being of the Cherokee people.(Letter, 12
December 1979, Chief James L. Gordon, UKB to Chief Ross O. Swimmer,
CNO)
The Band never has abandoned that essential position of willingness to
accommodate; however, CNO eventually demanded that all Federal-Indian
funding or opportunities flow their way.
* * *
Swimmer's response followed in January 1980, admitting that the UKB
was fully recognized as an Indian tribe ("I have no objection to the
Keetoowah Band operating as a recognized tribe"), but proceeding to
declare:
If the Keetoowah Band is able and desirous of obtaining funding for
its operations from sources other than those which the Cherokee Nation
has traditionally operated or been funded, I would support such an
effort. But, I would support that effort only after the Keetoowah Band
is able to demonstrate that those funds would be for the welfare of
all Cherokee people as are funds of the Cherokee people.(Letter, 4
January 1980, Principal Chief Ross O. Swimmer to Chief James L.
Gordon)
Swimmer would never dare to impose such conditions on any other
acknowledged tribe. Swimmer persisted:
One way the Keetoowah Band could alleviate the situation and
demonstrate its good faith in working for the welfare of the Cherokee
people would be a simple blanket resolution concurring with the
present program effort of the Cherokee Nation and giving, for whatever
purposes needed, its approval for the Cherokee Nation to solicit these
program funds.(Letter, 4 January 1980, Principal Chief Ross O. Swimmer
to Chief James L. Gordon)
Swimmer was perfectly willing for the UKB to participate in control of
programs for Cherokees, as long as the UKB rubber-stamped CNO's actions.
The only other alternative was to simply lie down and die. The UKB would do
neither.
* * *
The UKB undertook a variety of programs in the 1960s and 1970s, such as
light manufacturing and health services, but could not obtain adequate
funding or cooperation to continue them. The UKB attempted to lease the 40
acres at the site of the present CNO Tribal Complex during the 1960s as a
site for UKB businesses and industrial projects. From 1950 to 1975, the UKB
always was cooperative with Keeler and his Committees. The UKB Council
gladly co-sponsored and shared in the tentative undertakings of Cherokee
Nation or Tribe, not only for members of the UKB, but for the benefit of
the Cherokee people at large. Until the mid-1970s, all was peace and
cooperation between the Cherokee Nation Executive Committee and the UKB.
Reverend Jim Pickup, as UKB Chief, also served as Chaplain to the Executive
Committee until his death on 17 May 1967, and he and other UKB council
members actively participated in their proceedings as a consulting guest
whose counsel was welcome, before he joined them as a regular voting
member. It is quite possible that the UKB, in fostering a spirit of
accommodation and cooperation with the Principal Chief and his Executive
Committee, created its own monster. It is completely implausible that
Swimmer was ignorant of these facts, particularly the fact that equivalent
of the concurring resolutions of the UKB were obtained from the Chief of
the UKB for years, supposedly after the UKB had ceased to exist, while the
UKB Chief was serving as a voting member of the CNO Executive Committee.
* * *
Predictably, CNO alleged in its complaint to stop all funding for the
UKB that:
The Band are all members of the Nation and thus contracts with the
Nation benefit the Band. Not all Cherokees are members of the Band but
all members of the Band are members of the Cherokee Nation of
Oklahoma.[Cause No. 79-220-C, Complaint, allegation 8, at p. 3]
This allegation was highly misleading. A BIA study in 1990 revealed that
over 3000 current members of the UKB never were members of CNO, and has
declared that the UKB could claim a total independent service population of
4,500. Swimmer never bothered to validate his claims. On the other hand,
many Dawes descendants who are enrolled with the UKB have received,
unsolicited, Cherokee Nation of Oklahoma enrollment cards by mail. Further,
the UKB program to persuade UKB enrollees to relinquish their CNO
membership, if any, has resulted in over 400 relinquishments since the
relinquishment program expanded in 1990.
When the UKB moved to dismiss Cause No. 79-220-C, the CNO filed a
Brief in Opposition, complaining that the Department of the Interior would
not reconsider Seneca's decision recognizing the UKB as a separate and
autonomous entity requiring concurrent resolutions to operate programs:
Plaintiff was informed by Forrest Gerard, Assistant Secretary of
Indian Affairs, Department of Interior . . . that no further action
could be taken and no further consideration given to the matter within
the Department of the Interior.[Cause No. 79-220-C, Complaint, at p.
1]
The UKB agreed to an out-of-court "settlement", requiring CNO and UKB
mutually to provide concurring resolutions supporting any applications by
either for P. L. 93-638 or other Federal Indian programs servicing the
Cherokee people.
Mere days before leaving office, on 16 January 1980, Gerard repealed
the Seneca decision, which had been the basis for the "settlement" in Cause
No. 79-220-C:
We have found no reason to limit the service population for
either the Cherokee or Creek Nations simply because parts of those
populations may also be considered parts of the United Keetoowah Band
or the three Creek Tribal Towns. Members of the band and towns would
be served under the Cherokee and Creek contracts and/or grants.
Accordingly, there is no justification for contracts and/or grants
with the band or towns to provide the same services to these portions
of the Cherokee and Creek Nations which would be served under the
Nation's contracts and/or grants.
Concurring resolutions from the band and towns are not necessary
since the contracts would benefit only the Cherokee and Creek Nations
and their populace.
Gerard was a friend of Keeler's since their association with Arrow,
Inc.(American Restitution and Rightings of Old Wrongs, Inc.) since at least
1966, before Gerard began a presidential internship in Washington, D. C.
Keeler was on the Board of Directors and Gerard was a member of the
Advisory Council. Gerard had visited with Keeler in 1964 in Tahlequah, and
was on friendly terms when Keeler became part of the President's Advisory
Council.(Leeds 1992: 156) Immediately after the end of his tenure as
Assistant Secretary of Interior for Indian Affairs, Gerard accepted a
consultancy position with Cherokee Nation of Oklahoma. In what appears to
have been an extraordinary display of hutzpah, a weird sense of humor, or
dizzy absent-mindedness, Gerard solicited similar contract work as a
consultant in a letter to the UKB. The federal action was dismissed.
* * *
The 1980 Gerard Letter established the Department's clearly erroneous
position that the United Keetoowah Band of Cherokee Indians in Oklahoma was
a part of the Cherokee Nation of Oklahoma, subordinated to the CNO under
Article XIV of the 1976 Constitution. This craven concession to one tribe's
bid to terminate another tribe has become precedent for a wave of such
intertribal status challenges, primarily due to economic competition. The
Department of Interior, through its officials and agents, concluded that
the UKB could not prove that the 1946 Act acknowledging their right to
organize ever was implemented, or that the Band had existed at any time
since. Although OIWA was an effort "to make the provisions of the Wheeler-
Howard Act applicable to Indian conditions in Oklahoma," to allow "the
Indians of Oklahoma to exercise substantially the same rights and
privileges as those granted to Indians outside of Oklahoma by the IRA,"
[H.R. Rep. No. 2408 at 3], and Congress had conclusively ruled on the UKB's
right to organize under OIWA, for purposes of "administrative convenience,"
the UKB was required to receive Indian Self-Determination Act (ISDA, P. L.
93-638) services through the Cherokee Nation of Oklahoma. So, in 1980,
after having been included likewise on the Federal Register 1979 as
distinct recognized entities, the Creek Towns were denied funding separate
from Creek Nation, an OIWA tribe, while, the United Keetoowah Band in
Oklahoma was denied funding separate from Cherokee Nation of Oklahoma, a
non-OIWA tribe.
Gerard's UKB memo was the sole authority for administratively
terminating both the Creek Towns and the UKB, but the Letter was on shaky
ground from the start. On 24 April 1980, the UKB's attorney informed the
BIA that the UKB was prepared to file suit in the First District to require
the Department to set aside the Gerard Letter. Acting Assistant Secretary
of the Interior Wayne Mills denied having received any information from the
Muskogee Area Office regarding the UKB, thus verifying that the Muskogee
Area Director had refused to forward any information that he had received
from the Band. The UKB learned that Swimmer had forwarded copies of the
Gerard Letter to all Federal agencies, although the letter was only
supposed to have legal effect for the BIA. BIA officials requested a grace
period in which to develop and issue a new opinion. Chief Gordon learned
through contacts with the Washington offices of members of Congress Synar
and Jones, as well as Senator Bellmon, that Principal Chief had contacted
them repeatedly in his attempts to have legislation introduced to terminate
the UKB. The UKB Council resolved on 3 May 1980 to allow the BIA until 8
May 1981 to act.
On 16 September 1980, Congressman James R. Jones wrote to Ramona
Williams of the UKB that (in a letter of 12 September 1990) the Assistant
to the Secretary and Director of Congressional and Legislative Affairs,
Gary R. Catron, had reiterated the BIA's earlier response to Williams (from
BIA Acting Director, Office of Indian Services), dated 14 April 1980,
regarding the Band's requests grants and contracts, "When it is clear that
the Cherokee Nation and the UNited Keetoowah Band each have a separate
identifiable service population with no overlap, we will then have a basis
for independent grants and contracts under P. L. 93-638." Jones concluded
that the Band would have to show the beneficiaries had separate and non-
duplicative lists:
If the Keetoowah Band is able to establish separate members from the
Cherokees, they will then be eligible for BIA funds. That means you
will have a lot of work to do in the future, if you choose this course
of action. I assume this means that individuals who would be eligible
for both rolls would have to make a decision to be on one or the
other, but not both.
The Department and members of Congress were accepting uncritically the
posture of CNO that it had adopted a roll. It is interesting, however, that
throughout this period the BIA's position remained the same: "that the
United Keetoowah Band is a separate political entity." However, other
Indian tribes, the National Congress of American Indians, the National
Tribal Chairmen's Association (of which Chief Jim Gordon was at one time
Vice-President), the Okmulgee Agency of the BIA, as well as the Department
of the Interior Fish and Wildlife Service and other agencies continued to
view, and treat, the UKB as an autonomous tribal entity, separate from CNO.
The nation's oldest Indian Health Board, Oklahoma City Area Indian Health,
continued to treat the UKB as an autonomous tribal entity, and to list the
UKB as such on letterhead. The Indian Health Services (PHS, DHHS), directed
correspondence directly to the UKB, although they included the Creek Tribal
Towns in Creek Nation service population, and UKB members in the CNO
service population.[Memorandum, 17 March 1986, Duke McCloud, Senior
Attorney, Public Health Division, IHS (DHHS/PHS), to Richard McCloskey,
Director, Office of Legislation and Regulations Service, IHS (DHHS/PHS),
regarding "Grants and Contracts with the Cherokee and Creek Nations Under
Pub. L. 93-638 - United Keetoowah Band of Cherokees and the Creek Tribal
Towns. G. C. Ref. 79-2896 (59D);" see also: Letter, 19 January 1982, Area
Director John W. Davis to Tribal Leaders, Oklahoma City Area, Indian Health
Services, DHHS/PHS, covering "Tribes for Facility Service Area Planning
Utilized in Resource Requirement Methodology.") Interestingly enough, since
1992, the Indian Health Service has taken the view that the UKB is an
independent tribal entity with a separate service population.
* * *
The UKB continued to pursue its own agenda.(UKB Council Meeting
Minutes, 6 October 1979; UKB Council Special Council Meeting Minutes, 24
November 1979; UKB Resolutions 11-24-79-FY 80-2; Housing Authority
Ordinance, 1979; UKB Resolution 11-24-79 FY-80-04; UKB Resolutions 12-01-
79-FY 80-06 and 12-01-79-FY 80-07) The UKB Council sought aid from the
National Indian Youth Council in obtaining private assistance for the Band.
The Council asked the BIA to certify the Band for LEAA funded programs, and
applied for ISDA funds to develop a tribal health plan. The Band
investigated the Band's interests in CNO trust and other property. Between
1979 and 1983, the UKB made many funding applications in attempts to obtain
funding for UKB programs, to strengthen tribal government, and to resolve
challenges to its status.(Leeds 1992: 159) Lacking funds, the Band relied
on donations from the Council and their constituents, hog fries and raffles
to raise money to send Chief Gordon and other Council representatives to
Washington to obtain a reversal of the Gerard memo.(Letter, 3 March 1980,
Geary to Matthew Butler, Office of Revenue Sharing, Leeds 1992: 161)
In 1980 and 1981, BIA programs at the Tahlequah Agency were housed
under the Branch of Social Services, Branch of Credit, Branch of Housing,
and the Branch of Personnel. Of these, the Branch of Housing and Branch of
Personnel relied for eligibility only upon Indian descent.(U. S. Department
of the Interior, Bureau of Indian Affairs, Tahlequah Agency, table of
"Program Information / 1980-1981," indicating Indian programs, tribal and
social services) Of other programs offered in Tahlequah, the Office of
Indian Education's Division required 1/4 Indian blood quantum (regardless
of Cherokee B. Q.) for services, while IHS Services relied only on Indian
Descent in the case of any Indian, except that the C. D. I. B. had to be a
CNO C. D. I. B. in the case of Keetoowahs, regardless of any UKB C. D. I.
B. Cherokee Nation of Oklahoma varied its blood quantum eligibility
requirements among a range of programs, requiring that Keetoowahs
applicants a CNO C. D. I. B., regardless of their UKB C. D. I. B. After 1
February 1982, the Tribal Services Unit at Tahlequah Agency became the
Social Services Program (CNO). Bob Farring had opined in his 5 October 1981
Letter that because the UKB Constitution allowed the Council to make all
future membership decisions, "it could include everyone in the Cherokee
Nation."
So, while the UKB was trying to forge ahead, the Department was
continuing to address the Creek/Creek Towns and CNO/UKB funding issue. In
March 1981, Associate Solicitor Scott Keep advised the Commissioner of
Indian Affairs, regarding the illegal effect of the Gerard Letter on the
Creek Towns, despite the dual enrollment of large numbers of the Creek Town
members in Creek Nation:
the Indian governments which reorganized under Section 3 of the
Oklahoma Indian Welfare Act, 25 U. S. C. Sec. 503, are of the same
legal and independent character as those non-Oklahoma Indian tribes
which organized pursuant to Section 16 of the IRA, 25 U. S. C. Section
476, and 25 U. S. C. Section 503.
By virtue of 25 U. S.C. Section 503 of the Oklahoma Indian
Welfare Act tribes possess the identical rights and privileges secured
to IRA tribes under 25 U. S.C. Section 476, which include the power to
employ legal counsel, prevent the sale, disposition, lease, or
encumbrance of Tribal lands or assets, and to negotiate with the
federal state and local government. As such, there exists a
substantial question as to the legality of subjecting individually
recognized Oklahoma tribes to disparate treatment in the delivery of
Bureau services. Here those tribal governments which collectively
constitute the Inter-tribal Council were each reorganized pursuant to
a federal statute long prior to the Creek Nation acquiring those
benefits flowing form [sic] the Oklahoma Indian Welfare Act in 1979.
Thlopthlocco ratified its Oklahoma Indian Welfare Constitution in
1938, Alabama-Quarssarte in 1939, and Kialegee in 1941. To assert now
that the Bureau may not deal with those towns because of their
members' dual enrollment in a tribal body reorganized subsequent to
federal recognition of the Towns' separate status is directly at odds
with the intent of Congress that these governments be invested with
the authority and integrity of IRA tribes.
In addition, there can be no question that the towns are properly
organized as IRA entities for Bureau services. In 1937, Acting
Solicitor Kirgis determined that if organization of the Creek Nation
as a unit was found to be impracticable, these towns were separate
tribal entities capable of reorganizing under the provisions of the
OIWA.(Memorandum of Frederic L.. Kirgis, Acting Solicitor to the
Commissioner of Indian Affairs, dated July 16, 1937, p. 5) Moreover,
as regards the Towns' eligibility to deal with the Bureau on matters
effecting the Towns' membership, Solicitor Kirgis opined:
that if the towns are organized under Section 3 of the Oklahoma
Indian Welfare Act, the Federal Government will be in a position
in which it will, in many instances, be forced to deal with those
town organizations directly and as entities independent of the
Creek Nation and each other.
Of particular relevance to the Bureau's present stance of dealing with
the Creek Nation as the sole governmental entity representing the
Towns' membership.
The question then is whether Section 3 of the Oklahoma Indian
Welfare Act authorizes the Department to deal directly with recognized
by subordinate bands where Congress in the past has dealt only with
the (Creek) Nation. The answer should be made in the light of the very
purpose sought to be achieved by the Congress in the enactment of
Section 3 of the Oklahoma Indian Welfare Act. That purpose was to
allow the creation of organizations of Indians capable of handling
common credit and band problems for themselves.
Thus, both the terms of the OIWA and the findings of Solicitor
Kirgis indicate that the Bureaus' present position regarding the
towns' ability to separately negotiate and acquire Bureau services is
improper. Accordingly, I am of the opinion that the Bureau must once
again determine the propriety of dealing only with the Creek Nation .
. . (Memorandum, 23 March 1981, Scott Keep, Associate Solicitor,
Tribal Government and Alaska, Division of Indian Affairs, Department
of the Interior to the Commissioner of Indian Affairs)
The implications for the CNO/UKB case were obvious. Keep also recommended
revisiting the question whether, even though the Creek Nation held trust
title to the Tribal Towns' lands, "the circumstances surrounding the land
purchases should be reviewed and a determination made as to whether the
Town or the Creek Nation qualify as the proper holder of beneficial title
thereto."(Memorandum, 23 March 1981, Scott Keep, Associate Solicitor,
Tribal Government and Alaska, Division of Indian Affairs, Department of the
Interior to the Commissioner of Indian Affairs)
On 5 October 1981, Robert M. Farring, Tribal Operations, BIA,
Washington, D. C., wrote a "Memorandum for the Record," regarding the
matter of separate funding for the UKB and Creek Tribal Towns, informing
the Superintendent of the Tahlequah Agency:
[O]ur present practice of dealing only with the Cherokee . . . Nation
is not proper. To continue under existing policy will subject us to
suit by the four entities concerned.
Farring was referring, of course, to the funding issues involving UKB, and
the three OIWA/IRA organized Creek Towns. On 26 January 1982, the Director,
Office of Indian Services informed Mr. Frank Kamp, Solicitor of the
Alabama-Quassarte Tribe of Oklahoma, that:
We cannot . . . grant your request that we stipulate that the Creek
Nation has no authority over the Alabama-Quassarte Tribal Town. The
members of the tribal towns are also members of the Creek Nation and
subject to its laws.
The legal basis for allowing the Creek Tribal Towns to organize
separately under the Oklahoma Indian Welfare Act (OIWA) is set out in
a July 15, 1937 memorandum to the Commissioner of Indian Affairs from
the Solicitor. . . . As you can see from page 5 of that memorandum,
the Solicitor's approval of the separate organization from the towns
was premised on it being "administratively determined that
organization of the Creek Nation as a unit is not now [1937]
practicable." Since the Solicitor issued his memorandum there have
been, of course, a great many changes. Perhaps the most significance
[sic] change is the reorganization in 1979 of the entire Creek Nation
pursuant to the OIWA. [Letter, 26 January 1982, Theodore Krenzke,
Director, Office of Indian Services, Central Office, to Senator Henry
Bellmon, re: status of the UKB]
As a result of this determination, the Creek Towns remained under the
effect of the Gerard Letter until the end of the decade. In Appeal of
August 24, 1989, letter re: Creek Tribal Towns, 30 November 1989, Dr. Eddie
Frank Brown rescinded the Gerard Letter of 1980 against the Creek Towns,
although the Creek Towns and Muscogee Nation used the same base roll and
never had sorted out their membership. Cherokee Nation fell under a 1937
Opinion (Land Division, 25 October 1937) similar to that which prevented
the reorganization of the Creek Nation. CNO and the UKB rely on the Dawes
Roll, but the UKB, as an OIWA/IRA tribe, is not confined to the use of the
Dawes Roll to qualify applicants for membership. Since the primary
underpinning of the Gerard Letter as to the Creek Towns was the
reorganization of the Muscogee Creek Nation under OIWA and IRA, only
political obfuscation and sleazy politics prevented the UKB from
benefitting from the same dispensation.
* * *
The UKB persisted in efforts to overturn the Gerard Letter for years.
In a Letter, 15 October 1982, from the Director of the Office of Indian
Services, Washington, D. C., to Chief James Gordon of the UKB, the Director
stated:
Concerning the delivery of Bureau services, we explained the reason
for holding to the January 16, 1980 policy. While we recognize that
the United Keetoowah Band of Cherokee Indians is Federally recognized;
it has been our understanding that all members are also considered
members of the Cherokee Nation of Oklahoma.
The Director clearly erred. The UKB had a roll, while the CNO had a
registration list; and no resolution of the Cherokee Nation of Oklahoma
ever has recognized the members of the UKB either members of CNO, or
eligible for services or voting rights, individually or as a group, in the
CNO. The 1947 Act prevents the CNO from issuing CDIB's, or registration or
voter's cards except to Cherokee Dawes enrollees or their descendants.
Conversely, in a Letter, 4 November 1982, from Ross O. Swimmer to James
Watt, Secretary of the Interior, Swimmer, expressed the view of UKB
membership at the heart of the controvery: "All Cherokee Nation members are
eligible to enroll in the Band and vote in its elections." Swimmer tried to
rewrite the history of the entire process of UKB reorganization. A person
enrolled in the UKB who also was registered with CNO notified CNO of his
intent to relinquish membership in CNO in 1988, and received this response
from the Cherokee Nation Registrar, dated 11 August 1988:
Please be aware that you do not have to relinquish your membership
with us, simply to register with the Keetoowah Band. You may be
members with both.
The problem here is that UKB first fostered a program of dual affiliation,
and then alleged "dual enrollment" to bind the UKB, and to serve CNO's
interests.
On 23 October 1981, Acting Agency Superintendent Royal E. Thornton
notified UKB Chief James L. Gordon of the Agency's refusal to accept the
UKB's application for P. L. 93-638 Grant Funds, FY 1982, observing that
many CNO members would be denied social services if the program were
administered by UKB. On 7 November 1981, the UKB Council protested Cherokee
Nation's proposal to contract social services program administered by the
Tahlequah Agency of the BIA. Recall that in addition to the Dawes Roll, the
UKB alternatively uses the 1950 UKB Roll and other bases of determination
of Cherokee ancestry. CNO, under the 1947 Act, is restricted to the use of
the Dawes Roll to determine Cherokee descent, although a Cherokee Tribe
reorganized under OIWA and IRA would not be so restricted. The UKB
enrollment card served as the Band's Certificate of Degree of Indian Blood,
but CNO only would accept the white CDIB card issued by the BIA, and
required members of the UKB to be registered in CNO in order to receive
services. In other words, the CNO extorted de facto dual affiliation from
members of UKB.
While Federal regulations required the CNO to serve all persons of
Indian descent in the area, CNO would only accept its own credentials, in
order to bar services to UKB members who refused to affiliate voluntarily
with CNO. Swimmer claimed that UKB member who comported with Cherokee
Nation's independent determination of UKB membership according to CNO
membership rules would receive services. Swimmer stated:
I would welcome the United Keetoowah Band's participation in the
contracting process. I would be happy to brief their Council and Chief
on the proposed contract. The Cherokee Nation's proposal to contract
the Bureau's social services is not being entered into lightly. We
feel that our administering the program will enhance social services
for all Cherokee . . . " The Chief concluded by asking that anyone who
believes he/she has been denied the services of the Cherokee Nation
because of his/her membership in the United Keetoowah Band, or any
other band or society within the Cherokee Nation, to contact him
personally. "The Tribal Council and I have pledged, through
resolutions and contract agreements, to provide services to all
Cherokees. I will not tolerate our programs discriminating against any
person who can prove Cherokee ancestry."("Keetoowah Band Protests the
Cherokee Nation's Proposal to Contract BIA Social Services," Cherokee
Nation of Oklahoma Newsletter, 13 November 1981)
Despite his florid public protestation of innocent motives and good will,
Swimmer never extended the UKB the courtesies he touted in his "open
letter," and the only UKB members who received services were those who
obtained CNO credentials in addition to their UKB CDIB and enrollment
cared. When CNO took over the BIA operations for certifying blood degree of
Cherokee Dawes Roll descendants, CNO made its insistence that applicants
for a Cherokee CDIB had to acquiesce to registration in the CNO by putting
the CNO registration form on the reverse side of the CDIB application, and
by discouraging CDIB applicants from enrolling in the UKB. The CNO
registration office continued either to misinform UKB members -- even the
current Chief -- about the implications of dual affiliation, or to ignore
relinquishment forms from UKB members, or to re-register UKB members who
had relinquished, without their knowledge:
Please be aware that you do not have to relinquish your membership
with us, simply to register with the Keetoowah Band. You may be
members with both.(Letter, 11 August 1988, from Mr. Lee Fleming,
Director, Cherokee Nation Registration Office, to Chief John Hair,
UKB, 1983-1991)
* * *
While ignoring the UKB's requests for assistance, citing the
difficulty with carrying on regular business for lack of resources, the
Department focussed all its attentions on the Band's compliance with the
full letter of the law as to its obligations as a recognized tribe.(Letter,
5 December 1980, Acting Director of OIA Geary to Muskogee Area Director,
re: UKB appeal of election determination) When the Muskogee Area Director
sent results of the 1980 Council election to Washington, Geary declared the
election illegal because the Election Committee had not placed on the
ballots names of candidates who ran without opposition, although both the
Tahlequah Superintendent and Muskogee Area Director had authorized the
action. In appealing the decision, the Band cited its own Constitution,
giving the Council authority to prescribe rules and regulations governing
elections. The decision, a blatant attempt to terminate the tribal
government by declaring its Council illegal, failed when the Band succeeded
in overturning the decision.(Letter, 20 February 1985, Theodore C. Krenzke,
Acting Deputy Assistant Secretary of Indian Affairs to Muskogee Area
Director; Leeds 1992: 162) This course of events recalled in many respects
the efforts of Muskogee Area Director Pennington to nullify the UKB Council
in the 1950s (see above), when Chief Jeff Tindle was leading the opponents
of Principal Chief W. W. Keeler.
While the Geary decision was in effect, the Department simply
disregarded all the Council's resolutions and other actions, including
those challenging the building of the Tellico Dam (see below) and calling
for the return of burial contents.(UKB Resolution 07-11-81-FT-81-7) While
the UKB joined Eastern Band of Cherokees in North Carolina in opposing the
completion of Tellico Dam, Ross O. Swimmer declared that Cherokees had no
traditional sacred sites, cultural or religious resources to protect, and
in the same breath lauded TVA for digging up the history of the ancient
Cherokees. He also bought into the Engineers' claims that the best way to
protect a site for future generations was to bury under fathoms of
water.(Leeds 1992: 163)
Though this issue forged an alliance between the UKB and the Eastern
Band, the alliance dissolved under pressure and threats from CNO against
Eastern Band. Chief Mankiller reminded Chief Taylor that CNO could abandon
its posture of neutrality on the Lumbee recognition issue and support the
Lumbee recognition legislation (see below), unless Taylor supported CNO
against the UKB. The choice, apparently, was easy; Taylor simply overrode
his own Council's 1991 resolution supporting the UKB.(Letter, 27 July 1991,
Principal Chief Wilma Mankiller to Chief Jonathan L. Taylor; Joint
Resolution, 26 August 1992, CNO/ Principal Chief Wilma Mankiller to Eastern
Band/ Chief Jonathan L. Taylor, declaring their determination that CNO and
the Eastern Band of Cherokee Indians in North Carolina are the sole
federally acknowledged Cherokee tribal entities)
* * *
On 25 August 1982, UKB delegates Jim Gordon, Jim Proctor, Henry
Doublehead and Louis Griffin met with BIA officials in Washington with
counsel Ed Munson and interpreter Dave Whitekiller. While promising
nothing, the BIA suggested they would attempt to find funds to help the
Band sort out its population problem.(Letter, 15 October 1982, Office of
Indian Services Director Theodore C. Krenzke, to Chief James L. Gordon;
Leeds 1992: 166) Krenzke told Gordon that if the UKB prepared a list of
members who were not members of CNO, or who would agree to receive services
only from the Band, they could use the list to justify an application for
separate P. L. 93-638 contracts. Swimmer tried to intervene to block the
funding by claiming that the relatively small turnout in the 1982 UKB
election (UKB elections did not allow absentee ballots, whereas the CNO
did) justified denying funding regardless what the UKB did. Swimmer boldly
defamed the UKB Council by claiming they would simply spend the money on
themselves anyway.(Letter, 5 November 1982, from Ross O. Swimmer to James
Watt, Secretary of the Interior) Responding, while promising to consider
Swimmer's views, the Department said the BIA's position regarding funding
for the UKB would be considered when and if the Band could provide a "bona
fide" membership list, not overlapping with the CNO's.(Letter, 9 December
1982, Secretary of the Interior Ken Smith to Ross O. Swimmer)
By this time, Chief Gordon was in failing health and his wife, Betts,
was ailing. All his expertise, zeal, and effort could not overcome the
political connections and access of Ross O. Swimmer. Although the Band was
on the Federal Register, Swimmer had attempted in various ways to have the
Band's status revoked, including a lawsuit to reverse the Seneca decision.
The Gerard memo handed CNO the decision and mooted the lawsuit, though
Gordon and the UKB Council continued to apply for grants and fight the
Gerard policy in Washington. Solicitor Keep's bid to overturn the Gerard
policy led Bob Farring to decide that if Keep was right about the Creek
Towns' rights, he had to be right about the UKB's rights. The Band's remedy
was to establish a separate roll.(Leeds 1992: 168-169)
* * *
The 1983 UKB seated the following Officers:
John Hair, Chief
Louis Griffin, Vice-Chief
Ramona Williams, Secretary
Tom Hicks, Treasurer.
Chief John Hair pushed to reaffirm their right to an intergovernmental
relationship with the U. S, and with that, the right to separate funding
from programs. They refused to accept status as a faction or loan
association within CNO, because they are neither. The UKB established a
separate roll during Chief Hair's administration.
Former Chief John Hair (1983-1991), a fullblood Cherokee from Kenwood
Hills community, Oklahoma is a Korean War veteran, a retired electronics
instructor for the Air Force, and avionics specialist for American
Airlines. In a period of 23 years, he was a Councilman, Vice-Chief and
Chief of the UKB.(Leeds 1992: 172-173) Hair obtained the support of the
National Tribal Chairmen's Association (Chief James Gordon was former Vice-
Chairman of the organization) in 1983 in the effort to overturn the Gerard
policy against the UKB.(Letter, 8 June 1983, Elmer M. Savilla, Exec.
Director, National Tribal Chairmen's Association to John Fritz, Deputy
Assistant Secretary, Tribal Operations, BIA, Washington, D. C.; Leeds 1992:
173) Chief Hair and tribal counsel Ed Munson appealed to Oklahoma Senators
Boren and Nickles and OIS Director Krenzke directly. Krenzke advised Boren
and Nickles that the UKB needed a grant to update the rolls, and said he
would help locate funds for them.(Letter, 30 September 1983, Theodore
Krenzke, Director, Office of Indian Services, BIA, to Senator Boren, re:
UKB 93-638 Grant to update roll; Leeds 1992: 173) Based on the Gerard
policy, Muskogee Area blocked the application.(Letter, 1 June 1984, Acting
Area Director Robert F. Blood to Chief John Hair)
The UKB attempted to established headquarters, after failing to
obtaining use of Hastings Indian hospital in Tahlequah, or a pro-rata share
of CNO funds.(Letter, 27 January 1984, Chief John Hair to President Ronald
Reagan) At every turn, CNO was there to block any action of the UKB. The
only alternative seemed to be a hard session at the bargaining table.
The UKB held a series of meetings with CNO to sort out a solution, and
at a CNO meeting, UKB representatives Woodrow Proctor and George Wickliff
declared that unless the CNO agreed to pass a resolution rescinding the
Gerard policy, the UKB would file for an injunction to block all CNO
funding. The motion favoring recision failed despite support from the CNO
Council. Dennis Springwater of Muskogee Area Office declared that had the
resolution passed, Swimmer would have vetoed it.(Cherokee Advocate, July
1984; Leeds 1992: 172)
In July, 1984, Principal Chief Ross O. Swimmer declared in an
interview with the Cherokee Advocate that "Cherokee Nation Council members
agreed the United Keetoowah Band is a tribe." Swimmer claimed, "I have
always encouraged dialogue, . . . but it is more and more difficult . . .
when you realize that, for the most part, it's greed and avarice that drive
some people. . . . . We had an opportunity to witness some of that on
Wednesday night. . . . The Keetoowah Band (no relation to the Keetoowah
Society, the religious society organization) was asked to meet and discuss
the issues of mutual concern." Failing to achieve the utter capitulation of
the UKB, Swimmer used all the political influence and authority of his
office as Assistant Secretary of the Department of the Interior for Indian
Affairs to terminate the UKB administratively. CNO remained locked on
course and would not waver in its determination to terminate the
Band.(Letter, 9 June 1984, Development Officer Cecil Ship to Tahlequah
Superintendent; Letter 24 July 1984, Wilma P. Mankiller, President, CNO
Tribal Council to Ken Smith, Commissioner of Indian Affairs; Leeds 1992:
175)
The BIA knew they were going to be sued by someone no matter what they
did regardless whether they granted self-determination funds to the
UKB.(Letter, 6 August 1984, Tahlequah Superintendent Joe Parker to Office
of Indian Services Director Theodore Krenzke) Krenzke advised Commissioner
Ken Smith that despite Swimmer's adamant opposition:
[W]e believe that the policy of Self-Determination clearly requires
that the Band be given the chance to establish itself as a separate
entity which would have all options available to it under P. L. 93-
638. . . . Since the Deputy Assistant Secretary - Indian Affairs
(Operations) has recused himself from major policy decisions affecting
the Cherokee Nation of Oklahoma, we recommend that you approve the
award of a grant to the United Keetoowah Band for the purpose of
establishing a separate tribal roll for the Band.(Letter, 6 August
1984, Office of Indian Services Director Theodore C. Krenzke to
Commissioner/ Assistant Secretary of Indian Affairs Ken Smith)
Commissioner Smith concurred and advised the Muskogee Area Director:
[W]e believe that the policy of Self-Determination clearly requires
that the Band be given the opportunity to establish itself as a
separate entity which would have all options available to it under P.
L. 93-638.(Letter, 11 September 1984, Commissioner Ken Smith to
Muskogee Area Director; Leeds 1992: 176)
When they UKB attempted thereafter to obtain contract to use the Sequoyah
Indian School, the BIA demanded that the Band submit concurring resolutions
from 20 other interested tribes; yet the BIA only demanded of CNO that they
obtain consent of the Five Civilized tribes, ignoring the rest, including
the UKB, of course.(Leeds 1992: 177) When the Band asked the BIA for
surplus lands, the BIA lied, saying there were none, having planned to put
the 385 acres of land in trust for CNO.(Letter, 9 August 1985, Chief,
Division of Self-Determination Services Jay T. Suagee to Acting Director,
Office of Indian Services) The BIA continued to ignore the advice of Keep
and Farring and preserve the Gerard policy. The BIA made it clear that
though the UKB would have the P. L. 93-638 grant to clarify its membership
and update its roll, that the UKB's efforts would be wasted, because they
would treat the grant as a "one-time exception based on the availability of
year-end funding." The Acting Deputy to the Assistant Secretary determined
that there would be no further exceptions to the Gerard policy. The history
of the P. L. 93-638 project proved that the UKB suffer worst when they
succeed.(Letter, April 17, 1987, Acting Assistant Secretary Ronald Esquerre
to Chief John Hair, UKB) In his determination, Acting Assistant Secretary
Ronald Esquerre proclaimed, erroneously, "[H]istorically, the Keetoowah
were considered to be merely a [religious] society since they never
exercised any governmental authority."
The UKB sought to clarify the distinctness of their roll during the
administration of Chief John Hair (1983-1991), relying on their
understanding at the time that the CNO registration list was a valid roll.
The Band no longer believes that the CNO registry constitutes a roll at
Federal Indian law. Until 1984, the BIA had refused to contradict CNO's
claim that their Base Roll had been properly adopted and that it consisted
of the 1907 Cherokee Dawes Roll. Although even CNO's own legal counsel knew
the CNO constitution of 1976 never was adopted in compliance with IRA and
OIWA, the BIA had refused to question whether a registration list of Dawes
Cherokee Roll descendants constituted a legal addition to the Dawes Roll,
or represented a current roll adopted by the CNO Tribal Council.
In attempting to comply with the terms of the 1984 P. L. 93-638
Enrollment Update Grant, GO8G14204002, the Band's Registrar initially
requested the Department's permission to rely on the 1907 Cherokee Dawes
Commission Roll for information. The Band lacked access to their own
enrollment records, the original copies of which had been in Federal
custody since 1950. When the UKB authorized the issuance of Membership
Cards under the 1949 Base Roll, they made duplicate copies for reference
and for submission to the BIA along with the Base Roll itself, in
preparation for the approval of the UKB Charter (May 8, 1950) and
Constitution (October 3, 1950). These cards still exist in possession of
individual members, if not at Muskogee Area Office, and contain the
following information regarding the individual members of the United
Keetoowah Cherokee Band of Indians of Oklahoma whose names appeared on the
1949 Base Roll:
1. Name of Individual Member, with Address, Age, UKB Base Roll Number,
Degree of Blood, etc.
2. Head of Household in which member lives, including Name, Address,
Age, UKB Base Roll Number, Degree of Blood, etc.
Names of Parents of Member, including Address, Age, UKB Base Roll
Number, Degree of Blood, etc.
Names of Children of Member, Address, Age, UKB Base Roll Number,
Degree of Blood, etc.
Date of Issuance, Signature of Applicant.
The Department certified all blood quantum decisions approved by the Tribal
Council before the 1950 OIWA/IRA election, regardless of Dawes Roll blood
quantum of individual members. The UKB is not merely a descendency group,
so Dawes descendency, though used, is only one one among other factors in
membership determinations for the UKB. The UKB did not adopt the Dawes
Commission distribution roll as a UKB roll, only as a source of data,
alternative to other rolls, affidavits and determinations of elected
officials. Therefore, the UKB Tribal Council issued its own Certificates of
Degree of Indian Blood in issuing enrollment credentials and in approving
the Base Roll.
On 5 January 1985, the UKB Council passed UKB Resolution 06-01-85-01,
requesting the Secretary to convene an election to revise 1950
Constitution, allowing Dawes descendants in addition to 1949 UKB Roll
descendants of at least 1/4 degree Cherokee blood quantum to enroll.
(Letter, 9 January 1985, Jane E. McGeisey, Registrar, United Keetoowah
Band, to BIA, Tahlequah Agency, re: "Updating from 1949 Base Roll") This
letter is the only plausible source for the allegation that the United
Keetoowah Band ever was substantially out of compliance with the terms of
the 1984 P. L. 93-638 Grant, although the Band resolved the problem by
relying primarily on the 1949 United Keetoowah Band Base Roll. Department
action in January 1985 required the UKB to use 1949 UKB Roll as Base Roll.
The Department's response was unambiguously clear in saying that the United
Keetoowah Band's Base Roll is not, and cannot be, the 1907 Cherokee Dawes
Commission Roll:
A memorandum from the tribal registrar is being returned to you due to
non-compliance with the present grant. You are locked in with the 1949
base roll as required by the terms of the present grant. This
situation can be cleared up with the Muskogee Area Office Tribal
Operations staff when they are assigned for technical assistance to
assist the United Keetoowah Band in the enrollment process
shortly.(Letter, 23 January 1985, Acting Superintendent Cecil Shipp,
Tahlequah Agency, Bureau of Indian Affairs, to Chief John Hair, United
Keetoowah Band; emphasis added)
Upon being assigned to supply technical assistance to the Band, the BIA
Muskogee Area Tribal Operations staff should have supplied the United
Keetoowah Band's Registrar with access to, if not copies of, the materials
in the 1949 United Keetoowah Band Roll Card File. Needless to say, the
Secretary never convened the Federal election in accord with the Band's
resolution.
Correspondence in the NARA, Washington, D. C., shows that the BIA took
custody of the 1949-1950 Card File supporting the United Keetoowah Band's
1949 Roll in 1950. However, the Band was unable to find or use these
materials in compiling the enrollment update, and the BIA made no
disclosure to the Band regarding the location of the Card File. For records
on receipt and storage of records relating to the enrollment and
reorganization of the United Keetoowah Band, see generally: Central
Classified Files of the BIA, Department of the Interior. Box 330.
Accessions 57A-185. Records for 1948-1952. Cherokee Nation. 00-219 (010.-
020.; 050.-059., Box # 12), File # 43292; originally in Box # 36,
Accessions 56A-588, 1-58, 14/46:49-1, 1946. Transmittal letters of Area
Director W. O. Roberts, Five Civilized Tribes, attest to the receipt and
archiving of these materials.
Between November 1984 and March 1986, UKB enrollment staff and members
of the UKB Tribal Council compiled a list of all members who had met the
membership requirements in effect at the date of each individual member's
enrollment, including those on the 1949 Roll. Lacking the 1949 Card File,
the Band replaced applications for all 1949 enrollees, as well as all
enrolled since them whose file jackets were incomplete, defective or
missing. Staff used an enrollment application form (Revised 04/30/1985)
that required the same information as the 1950 enrollment project did, with
some additions. Applicants had to report whether they were adopted. They
also had to supply a copy of their UKB enrollment card, indicating degree
of Indian blood, or a Certificate of Degree of Indian Blood, or both.
Applicants were required to affliate with one of the nine districts for
voting purposes. Applicants were approved or disapproved for full,
honorary, associate and adoptive membership. The Band verified which
members were 1/4 degree Indian blood or more, for whom current addresses
and other information was absent, or whose status as active members was
otherwise uncertain. The enrollment staff updated all files and compiled
two final lists of current members as of 1986, including the most current
information regarding residency, marital status and the like. The project
staff also compiled information on deaths since the last enrollment update.
At the end of the project, the Band prepared a current (1986) Roll of
full members in good standing confirmed by the Council to be of 1/4 degree
Cherokee Indian blood or more. The Band approved a separate list including
Associate or Honorary members, and full members who at one time had been in
good standing but whose files still were incomplete or deficient at the end
of the Grant. Some files were impossible to update despite good faith
efforts by the staff and Council (due to the members' failure to respond to
inquiries and supply a current address, or due to uncertainty whether the
persons even were alive). Some Associate Members enrolled since 1949 moved
to the 1986 list of Full Members in good standing, due to blood quantum
clarifications. The final count from the enrollment office was 1376 UKB
1949 members. Of the 1949 files, 764 were amended or updated, either by
revised application or proof of demise. The new total, including the 1949
Base Roll and 1986 Current Roll, was 6,050. The UKB completed the 1949
United Keetoowah Band enrollment update, and the Tribal Council certified
the enrollment update and the new 1986 Membership Roll on 15 March 1986.
The Band transmitted the updated 1949 Roll, the newly approved and
duly adopted 1986 Membership Roll, and the Final Report of P. L. 93-638
Grant G08G142002 to the BIA's Muskogee office as a deliverable on 16 March
1986. The Band submitted these records to Federal District Court with a
cover note from the BIA Muskogee Area Office, in the course in litigation
in 1987 in Cordelia Tyner, a/k/a/ Cordelia Tyner Washington, and the United
Keetoowah Band of Cherokee Indians v. State of Oklahoma, ex re., David
Moss, District Attorney and David Moss, individually; M. Denise Graham,
individually, No. 87-2797, U. S. D. C., N. D., Oklahoma., when the State
subpoenaed a copy of the Band's tribally-certified roll.(UKB Final Report
on P. L. 93-638 Grant No. G08G142002, 16 March 1986) After the completion
of the enrollment project, a series of burglaries and incidents of
vandalism occurred at the UKB headquarters in Tahlequah, resulting in
damage to or destruction of some files and other property. However, all
members' files predating 15 March 1986 had been certified already as to
their status as of that date. Also, increased security at the tribal
offices and continuing updating of files in the course of conversion of the
enrollment system to automation has improved record-keeping.
Regardless of Dawes descendency, it is the policy of the United
Keetoowah Band of Cherokee Indians in Oklahoma that all lineal descendants
of the 1949 Base Roll and current roll are automatically eligible for
membership in the Band. The UKB hoped that the enrollment update and other
status clarification efforts would result in separation of their population
from CNO's, and would lead to the development of a UKB land base and
separate programs. However, a separation of the two populations required
the cooperation of CNO, and that was impossible for the UKB to obtain. As
a result, the UKB continued the relinquishment program and worked with the
BIA to sort out dual affiliation issues.
With Swimmer in as Assistant Secretary for Indian Affairs, matters
continued to deteriorate even more rapidly. When the UKB asked to have five
acres of land put into trust, the BIA demanded a concurring resolution from
CNO. When the UKB met with the CNO Council and a BIA spokesperson on 11
January 1986, the Council tabled the resolution and sent it to a workshop
committee, thereby assuring that no action could happen on the resolution
until after the UKB's option to buy the land had lapsed.
The UKB knew the only alternative was a lawsuit, but they had no
resources. Chief Hair suggested that Bingo parlors and smoke shops would be
the only sources of quick income that could finance the litigation. When
the Council refused to move on the proposal, he persuaded the fullblood
Cherokee minister of the Steeler Baptist Church in Kenwood Hills, Reverend
Bert Spade, to run for Council. The measure passed by Spade's vote.(Leeds
1992: 179) The purpose of these enterprises was to generate attorneys' fees
and other litigation costs. The Band created an enterprise board similar to
the one North American Management Co. had established for Sac and Fox with
the help of Dave Whitekiller and Bill Burgess. The Enterprise Board was to
create and regulate businesses. Dr. Austin Ketcher was Chair., Maxie
Thompson (Cherokee Co. Commissioner) and Nancy Lambert were original
members. Treasurer John Ross was also a member. The Board gave the Band 80%
of profits, keeping 20% for operating costs.(Leeds 1992: 180) The Board
licensed 22 shops in 1990. The income from these and the Tahlequah Bingo
operation paid the attorney's fees, and allowed the Band to hire G. William
Rice, a Band member, as well.
The UKB contracted with a wholesale supplier to route tobacco products
to UKB businesses. Indian land holders assigned their lands to the UKB who
leased it to assignors. The assignor/operators became employees of the
wholesale company to run the smokeshops on the leased land. After two
months, the shops were raided and the operators were charged with
unlicensed tobacco sales. Since the UKB did not own the shops, the District
Court found for the State in State of Oklahoma v. Donna Garman, CRM-86-262,
and Donald Lee Tillery, CRM-86-263, 24 April 1986.
The Department's position in the 1980s arose in a moral vacuum,
created through sleight of hand. In a Letter, 17 April 1987, to Chief John
Hair, UKB, Acting Assistant Secretary Ronald Esquerre proclaimed,
erroneously, "[H]istorically, the Keetoowah were considered to be merely a
[religious] society since they never exercised any governmental authority."
If these pronouncements reflect ignorance of historical records, then
documents, minutes of meetings, copies of rolls routinely (allegedly) seem
to evaporate from the Department's files; however, the Department's posture
purports to be based on "historical" evidence, and necessarily such
evidence has to contradict our records. Esquerre also determined that the
recognition of the UKB:
in no way can be read as authorizing the Band to exercise concurrent
jurisdiction over Cherokee lands within the former Cherokee
Reservation. Furthermore, because the subject lands fall within the
Cherokee Nation's former reservation, their consent [to have land
taken in trust] is required under 25 CFR 151.8.
Nothing in the legislative or administrative records preceding the
administrations of Forrest Gerard and Ross O. Swimmer supports this self-
serving view. Ross O. Swimmer's subordinate made a dogmatic and canned
statement omitting reference to essential and pertinent records at hand.
Without calling for a review of the UKB's status, Esquerre announced that
the UKB essentially does not exist as a tribe.
The UKB bought a closed lumber yard and adjacent structures in
Tahlequah, and hired managers for a bingo hall. The Band opened offices in
the basement of the building. The Band opened another bingo hall on land
leased from Cordelia Tyner: the Horseshoe Bend Hall at Sperry, and soon was
grossing $10,000 per month there. The BIA failed to act on the UKB's
proposal to obtain 25 U. S. C. Section 81 approval of a contract to run the
Horseshoe Bend operation, as it had failed to act on 22 others that
languished on Ross O. Swimmer's Washington, D. C. in-basket. Someone was
able to influence state officials to allow all other unapproved bingo
businesses in Oklahoma to operate unmolested, while pinning their
attentions on Horseshoe Bend. Swimmer claimed in an interview with Georgia
Leeds (4 February 1992) that he routinely recused himself from dealing with
matters involving CNO and UKB during his tenure as Assistant Secretary, but
his claims are dubious, indeed.(Leeds 1992: 182)
The State claimed the Horseshoe Bend hall was a public nuisance, not
located on Indian land, and sued the owners and the UKB.(Cordelia Tyner,
a/k/a/ Cordelia Tyner Washington, and the United Keetoowah Band of Cherokee
Indians v. State of Oklahoma, ex re., David Moss, District Attorney and
David Moss, individually; M. Denise Graham, individually, No. 87-2797, U.
S. D. C., N. D., Oklahoma) The Band filed its brief, and in the course of
discovery, responding to the State's subpoena, included a copy of the
approved March 1986 current UKB Tribal Roll in the record, with a cover
letter from the Muskogee Area Office authenticating the document. Judge
James O. Ellison found that Tyner's restricted allotment was "Indian
Country" and not under state jurisdiction. However, the UKB's contract with
her was declared void because the Band had failed to obtain 25 U. S. C.
Section 81 approval for it. The UKB appealed in the 10th C. U. S. Ct. of
Appeals.(Appeal from U S. D. C., N.D. Okla. D. C. No. 87-C-29-E, 14 March
1991; Leeds 1992: 182-183)
This series of calamities harmed Chief Hair's standing, and the 1986
Chief's race was close, but Chief Hair survived a challenge from Woodrow
Proctor, who had replaced his father Jim Proctor (Flint District) on the
Council during the latter's illness. Proctor then won a race for a seat on
the CNO Council and relinquished the remainder of his father's term.(Letter
of resignation, 1 August 1987, Woodrow Proctor to UKB Council) Jim and
Woodrow Proctor have thereby become opponents in pending Federal
litigation. The new Council elected on 3 November 1986 included:
Officers
John Hair, Chief
Louis Griffin, Vice-Chief
Charlotte Vann, Secretary
Treasurer, John Ross, Jr.
Council
Dora Grayson, George Washington, Nancy Lambert, Frank Swimmer, Richard
Manus, Susan Girty (Adair), Maxie Thompson, Mike Girty and Henry
Doublehead.
Cherokee Nation of Oklahoma and its friends continued to block all UKB
development efforts, knowing that the UKB intended to focus its resources
on fighting for autonomy. White merchants, like CNO, opposed UKB
competitors, regardless of the enterprise in question. Vian's "concerned
citizens" attacked a Keetoowah shop and burned it to the ground in December
1986. When firefighters answered the call, the Town Council sent them away,
for "lack of jurisdiction," while "concerned citizens" raised shouts of
"Let it burn!" Challenged on the action, City Councilman John Ford retorted
the Indians needed to "reevaluate their situation" and "try to become
American citizens." This blatantly racially-motivated assault had an ironic
if not farcical aftermath when a BIA employee stopped at a Vian convenience
store years later to buy soft drinks for his family waiting in their car.
Vian police officers, hoping he might be a UKB member, arrested him, hand-
cuffed him, and hauled him off to jail on a charge of "vagrancy."(Tulsa
World, 13 February 1990, and Muskogee Phoenix, 10 June 1990; Leeds 1992:
184, 185)
* * *
In October, 1988, the Creek Towns succeeded in achieving restoration
of their independent status and separate funding from Creek Nation, though
Creek Nation of Oklahoma, has been organized under OIWA/IRA since 1979, and
despite presumed eligibility of members of the Creek Tribal Towns as
individuals in Creek Nation of Oklahoma. The BIA has since agreed that this
action was administrative error, applying the rule that overturned the
Gerard Letter with the same implications for the Creek Towns, even though
the IRA constitutions of at least two of those towns still expressly allow
dual enrollment of Creek Town members with Creek Nation (which organized
under OIWA and IRA in 1979).
Finally, in Appeal of August 24, 1989, letter re: Creek Tribal Towns,
30 November 1989, responding to Thlopthlocco Tribal Town v. Deputy
Assistant Secretary - Indian Affairs (Operations, 13 IBIA 302, 24 August
1989) a memorandum from Dr. Eddie Frank Brown to the Muskogee Area Director
rescinding the Gerard Letter of 1980 against the Creek Towns, the Assistant
Secretary for Indian Affairs determined:
We conclude the three (3) Creek Tribal Towns (Alabama-Quassarte,
Kialegee, and Thlopthlocco) are each Federally recognized as separate
entities eligible for funding and services from the Bureau. Further,
we find no basis to continue the policy currently in effect.
Therefore, the policy as outlined in the Gerard memorandum of January
16, 1980, is hereby rescinded.
Although the tribal towns are recognized as separate entities,
federal funds can not be distributed to the same service population.
Therefore, the Bureau, Creek Nation and Tribal Towns should develop a
mutually satisfactory plan for dealing with the issue of overlapping
memberships. For example, the entities could provide concurring
resolutions; each tribal town could amend their respective
constitutions to prohibit dual membership; or some other plan to
segregate members of the three (3) Creek Tribal Towns from the
Muscogee (Creek) Nation could be developed by the tribal towns and the
Muscogee (Creek) Nation.
You are to assist the Creek Nation and tribal towns. The plan, on
completion, is to be submitted to your office for review and forwarded
to this office for approval action. No Bureau monies are to be
expended in the development or implementation of the plan.
The problem of overlapping enrollments or service populations has been
addressed differently in the latter cases, but has become the extreme and
unwarranted focus in the UKB's case, because Cherokee Nation of Oklahoma
claims the UKB's roll duplicates the "roll" of Cherokee Nation of Oklahoma.
However, this is impossible because Cherokee Nation of Oklahoma has a
registration list relying on a closed roll, and voting list, but no roll.
* * *
The UKB continued to attempt trust land acquisition by requesting a
concurring resolution from CNO Tribal Council. Mankiller declared that the
Band would have to deed the proposed land to CNO and lease it back,
following the old plan for the Tribal Complex. Jelanuno Trust would own the
property, the money would go into First National Bank of Tahlequah. CNO
would get the gifted land put into trust, and CNO would decide later
whether they would accept the offer of a leasing arrangement from UKB, once
UKB gave CNO the land. This towering act of arrogance had precisely its
intended effect: the UKB dropped the matter.(UKB Minutes, 11 April 1989;
Leeds 1992: 188) Chief Hair determined never to deal with CNO again.
The UKB's Charter assured them title to Cherokee unallotted lands,
including the Arkansas Riverbed and the abandoned railroad lands. The U. S.
restricted for fifty years allotted lands of 1/2 to fullblood Keetoowahs,
and thereafter, the land becomes unrestricted and taxable. The U. S. paid
unpaid taxes due on certain lands, but allowed the owners mere life
estates, after which their rights reverted to the Oklahoma Cherokee tribal
"entity organized under OIWA," namely, the UKB. CNO took possession of all
these lands, however.(Leeds 1992: 189) In 1989, the UKB passed a resolution
demanding the restoration of all these lands to the UKB.(UKB Resolution 89
UKB 1-2, 21 June 1989) The BIA continued to deny UKB requests to put land
into trust, without the concurrence of CNO, claiming the UKB never had had
a reservation in Oklahoma and had "never exercised independent governing
authority over nay of the Cherokee Nation's reservation land."(Letter 1
February 1989, Muskogee Area Director Merritt Youngdeer to UKB Chief John
Hair; Leeds 1992: 190)
The UKB turned to Congress, asking only for approval of trust status
for five acres gifted to the U. S. in the Band's name.(Letter, 1 April
1989, UKB Treasurer John Ross, Jr., to Congressman Mike Synar; Letter, 18
April 1989, UKB Council to Congressman Mike Synar) In a personal exchange
with Senator Daniel K. Inouye in the Spring of 1989, Treasurer John Ross
and Chief John Hair informed the Senator briefly about the circumstances,
and the Senator pledged to do what he could to help.(Leeds 1992: 191) Chief
Mankiller's May appeal to Washington on the matter blurred history in
remarkable ways, and ended in the claim that Congress had erred in
acknowledging the Band and allowing it to organize in 1950. Mankiller urged
that Earl Boyd Pierce and W. W. Keeler had encouraged a new group to
incorporate so that it could serve as a tool to "pursue claims against the
government in the event the courts would rule that the 1906 Act terminated
the Cherokee Nation."(Letter, 16 May 1989, Principal Chief Wilma P.
Mankiller to Senator Daniel K. Inouye) This was an obvious lie to anyone
who had checked dates: Congress acknowledged the UKB on 10 August 1946, and
Earl Boyd Pierce and Keeler were not even on the scene then. In an even
more bizarre claim, she stated that the UKB had chosen the name "United
Keetoowah Band" because of its "familiarity." Arguing in the alternative,
Mankiller echoed Swimmer in claiming that separate recognition of the UKB
(as if it did not already exist) would be an invitation of "a foreign tribe
into the Cherokee Nation's territory," allowing the Band to compete for
land acquisition and funds. The CNO demanded sole authority regarding trust
land acquisition within "CNO's" boundaries. Mankiller concluded that by
working together, CNO and UKB could accommodate the "distinct political
interest" of each. A simple examination of the records would have resolved
any doubts that Mankiller was grasping for whatever language would do the
trick. Correspondence followed on the same matter between the Band and
Congressman Synar and Senator Inouye, while all awaited the Thlopthlocco
appeal's results with bated breath.(Letter, 21 July 1989, Congressman Synar
to Assistant Secretary of the Interior Eddie Frank Brown; Letter, 2
November 1989, Deputy to Assistant Secretary of the Interior Hazel E.
Elbert (Tribal Services) to Congressman Mike Synar) The Creek towns were
allowed to participate directly in Creek programs by concurring resolutions
for funding and services, or establish separate rolls (whereas they
previously had provided for dual enrollment in their constitutions).
* * *
Knowing that the UKB might now be able to overturn the Gerard policy
because of the precedent in the Creek Towns cases, and that CNO could not
call for elections to reorganize properly under OIWA and IRA without
upsetting the old order and stirring up a real hornet's nest, CNO set up a
preemptive strike by initiating a tax on shops within the 14 districts,
levying a higher tax than UKB. Pat Ragsdale, on loan from the BIA to CNO
for the purposes of the self-governance pilot project, claimed the CNO had
regulatory authority over all smoke shops in the area, regardless whether
they were licensed by the Band, and stated that CNO was going to legally
challenge the Band's shops.(Tahlequah Neighbors, 31 January 1990, p. 1;
Leeds 186) New Principal Chief Mankiller ordered raids on UKB's shops in
Cherokee, Tulsa and Sequoyah Counties. CNO Tax Commission officers, cross-
deputized, accompanied the sheriff's deputies, and held operators at gun
point, dragging owners away in cuffs, including one who was recovering from
recent surgery. Sequoyah County deputies manhandled one owner whom they
knew had a serious heart condition, and when the elderly man pleaded that
he needed his phone for medical emergency calls, deputies gleefully ripped
it out of the wall.(Leeds 1992: 187, fn. 40) When CNO sent trucks to
confiscate the goods, the owners filed in Federal court for restitution in
Sonny Buzzard, et al. v. Oklahoma Tax Commission.
Nearly 50 white merchants from Muldrow, Roland and Vian demanded
assistance from Senators Boren and Nickles, charging that the UKB smoke
shops were "wildcat" illegal operations. Area Director Merritt Youngdeer
said that the BIA was unable to determine the legality of these smoke
shops, but that there was nothing he could think of that would resolve the
situation.(Petition, 1 June 1990, Merchants to Senator David Boren; Letter,
3 August 1990, Area Director Merritt Youngdeer to Senator Don Nickles;
Leeds 1992: 186)
In various statements in 1990, Chief Mankiller claimed the UKB had no
authority to put land in trust for any businesses. Mankiller puffed that
the UKB had "degenerated into a band that merely markets sovereignty,"
knowing that the express intent of the UKB was to accumulate the resources
to fight for its existence. While using all available resources to incite
the UKB, Mankiller threatened that if the UKB persisted, there would be
"civil war."(Leeds 1992: 187-188)
* * *
Brown failed to include the UKB in the Creek Towns determination,
undoubtedly due to CNO's hectic lobbying. The UKB followed up on the Creek
Towns determination in a letter to Assistant Secretary Brown demanding a
prompt recision of the Gerard memo and a determination that the UKB was
entitled to acquire land in trust in Oklahoma.(Letter, and Executive
Summary, 20 March 1990, G. William Rice, Esq., General Counsel for United
Keetoowah Band of Cherokee Indians in Oklahoma, to Dr. Eddie Frank Brown,
Assistant Secretary of the Interior for Indian Affairs)
Rice pointed out that Swimmer's influence necessarily was a factor in
the continuing suppression of UKB sovereignty. Chief Hair and Bill Rice
went to Washington and met with Brown on 20 March 1990. Arbitrarily and
capriciously, the BIA had prevented the Band from acquiring trust property
within the exact area the U. S. Congress recognized in 1946 as the
residence of the Band for all purposes. The Band had lost many
opportunities to acquire land in trust there by gift or purchase, while in
other cases, the Band had received small parcels from tribal members and
others, now subject to Federal restrictions against alienation under 25 U.
S. C. Sec. 177 (Executive Summary, 20 March 1990, G. William Rice, Esq.,
General Counsel for United Keetoowah Band of Cherokee Indians in Oklahoma,
to Dr. Eddie Frank Brown, Assistant Secretary of the Interior for Indian
Affairs; Leeds 1992: 194) Before they could receive a response, the UKB
learned that CNO had applied for a three year self-governance demonstration
project awarding them direct control of the $6.1 million allocation it
received from various programs. The Band asked that the BIA hold the
application in abeyance until the resolution of issues relating to Federal
assistance to the UKB.(UKB Resolution 90 9UKB4-01, April 27, 1990)

* * *
Principal Chief Mankiller contacted the enterprising former Principal
Chief of Cherokee Nation of Oklahoma to lobby as of counsel with Hall,
Estill, Hardwick, Gable, Dolden & Nelson, P. C., in Washington, D. C., and
Tulsa, Oklahoma.(Letter, 7 May 1990, Principal Chief Wilma P. Mankiller to
Ross O. Swimmer) Mankiller accused the Band of violating their charter,
accused members of criminal activity, insinuated conflicts of interest, and
otherwise tarred the Band to the greatest extent possible. These
accusations, obviously, have come to nothing in the succeeding years,
because they were knowing lies, concocted to serve immediate needs. For
instance, to Mankiller's certain knowledge, a member of the CNO Council
also owned a smoke shop "licensed, taxed, and regulated" by CNO; but of
course, among "good old boys," that was okay.(Cherokee Advocate, December
1991, p. 3; Leeds 1992: 196) Betraying appalling ignorance or
disingenousness in a letter to the Assistant Secretary, Mankiller also
claimed that the Band had tried to identify itself with the Nighthawks,
whom she believed were the "historical Keetoowah Society."(Letter, 7 May
1990, Principal Chief Wilma P. Mankiller to Assistant Secretary - Interior
Eddie Frank Brown; Leeds 1992: 196-197) Mankiller claimed that in 1937,
Kirgis had declared:
in no uncertain terms that the United Keetoowah Band was not eligible
to organize since it did not function as a government.
Mankiller apparently was unaware of the Department's June 1939 discovery of
the 20 September 1905 Federal Charter of the Keetoowah Society, Inc., or of
D'Arcy McNickle's scathing 24 April 1944 repudiation of the Kirgis Opinion.
McNickle's study of the Keetoowah Band supplied the policy basis for the
1946 Act. Mankiller claimed that Kirgis was answering the Nighthawk's
petition for organization under OIWA. On the basis of the alleged absence
from the Department's custody of certain basic business records and
original organic documents of the UKB that would address these points, the
Bureau of Indian Affairs/ Department of Interior supported Mankiller's
view, and denied the UKB's sovereign rights. The lazy way also was the
politic way for the BIA, and so Area Director Merritt Youngdeer of Muskogee
Area Office adopted her position in requesting that the Department proceed
with the self-governance compact with CNO without mandating concurring
resolutions from UKB. The BIA and CNO executed the contract, and it took
effect on 1 October 1990.(Muskogee Phoenix, 5 July 1990; Leeds 1992: 197)
* * *
Ross O. Swimmer's response to Mankiller's cry for help came on 8 May 1990,
when the former Principal Chief of CNO and former Assistant Secretary of
the Interior wrote to Dr. Eddie Brown (on the stationary of Hall, Estill,
Hardwick, Gable, Golden and Nelson, P. C., a Tulsa and Washington, D. C.
law firm, to which he was "of counsel"), arguing against any policy change
in favor of the UKB. It is instructive to consider his points in sequence.
A. Swimmer claimed that:
By no stretch of logic, legal doctrine or historical evidence is the
United Keetoowah Band an entity completely separate and apart from the
Cherokee Nation.
The entire history of the UKB's reorganization disposes of this argument.
Neither Keeler, Swimmer, Mankiller, Pierce, nor any other employee or
official of Cherokee Nation, CNO, or the Federal government ever bothered
to pull those reorganization documents out of the Department's files, or
from the National Archives. No opponent of the UKB has written any decision
or argument based on those documents. One looks in vain throughout BIA and
CNO correspondence for a single documented statement based on those
records, or even a citation indicating the writers' knowledge of the
whereabouts of such records.(Please refer to above narrative regarding the
reorganization of the UKB and historical developments thereafter; *: IV;
File # 43292)
B. Swimmer claimed that:
The United Keetoowah Band has never had a single treaty with the
United States Government.
That is a naked lie. On 9 May 1950, in signing approval of the UKB Charter,
Secretary Warne determined that the UKB's treaty rights were spelled out in
the Cherokee Nation treaties.(Letter, 8 May 1950, Assistant Secretary -
Interior William E. Warne to Superintendent W. O. Roberts, re: Keetoowah
treaty rights, *: IV; File # 43292).
C. Swimmer stated further that:
The United Keetoowah Band was created at the request of Cherokee
Nation Principal Chief W. W. Keeler under the 1936 Oklahoma Indian
Welfare Act to pursue credit opportunities and for other limited
purposes. Chief Keeler felt the United Keetoowah Band could serve the
interests of the Cherokee Nation in a way that the Cherokee Nation may
not.
This statement was laughably wrong, except for the second sentence. The
history of the UKB reorganization proves that until after the death of
Jesse B. Milam in 1949, Cherokee Nation Principal Chief W. W. Keeler was
not Principal Chief, and that Milam took little interest in the UKB's
reorganization.[Letter, 14 February 1942, Principal Chief Jesse B. Milam of
Cherokee Nation to Commissioner, regarding UKB reorganization, and the call
for legislative acknowledgment of the UKB's right to reorganize; Letter, 12
March 1942, Commissioner William Zimmerman, Jr. to Principal Chief of
Cherokee Nation Jesse B. Milam, regarding UKB reorganization (Fort Worth
NARA)] Keeler did not appear on the Cherokee political scene until after
the 1946 Act had recognized the UKB. Keeler's first sign of interest in the
UKB came after he began to understand that Keetoowahs existed, about the
time he was appointed to the Cherokee Executive Committee on 30 July 1948.
Thereafter, finding three Keetoowahs on the Executive Committee, Keeler
attempted to communicate with the UKB, as well as important faction heads;
thus, in his Letter dated 30 September 1948, W. W. Keeler to Levi Gritts,
Keetoowah Society, Inc., suggesting that the Executive Committee should
simply disband and support UKB's reorganization effort, and then the UKB
should take over services to Cherokee people and function as Cherokee Tribe
government! Keeler, at 1/16 degree Cherokee blood, was hardly even a
participant observer in the UKB's reorganization. Unlike even Earl Boyd
Pierce, Keeler was never even an associate or honorary Keetoowah. On the
other hand, Keeler certainly felt the UKB could serve the interests of the
Cherokee Nation in a way CNO could not, for a variety of well-documented
reasons discussed above. Keeler used the Keetoowahs in ways that neither
Congress, the BIA nor the UKB intended or anticipated.
D. Swimmer claimed further that:
The name United Keetoowah Band was chosen because of the familiarity
of the Keetoowah Society to Cherokee people, not because there was any
historical tie between the Keetoowah Society and the United Keetoowah
Band.
Once again, Swimmer ignored and evaded the historical record of the UKB's
reorganization, presuming that everyone else would. D'Arcy McNickle's
determination of 24 April 1944 proves why the choice of the name was
appropriate in every way. Swimmer's claims are particularly disturbing
because the reorganization record shows the entirely abortive efforts of
interested parties to cajole the UKB in using the name, "United Cherokee
Band of Indians," omitting all reference to Keetoowah, and includes the
Department's reflections on the Band's reason for continuing to use the
name Keetoowah.[Letter, 26 October 1942, BIA Organization Field Agent W. A.
Exendine, transmitting a set of draft Constitutions and By-laws of the
"United Keetoowah Cherokee Band of Indians in Oklahoma," with a resolution
of the Band requesting recognition under OIWA or the enactment of
appropriate legislation requesting such recognition, with a letter of
transmittal through the agency (through Supt. Landman and the Organization
Division) to the Commissioner; *: IV; File # 43292]
E. Swimmer also claimed:
Band leaders consistently try to tie the United Keetoowah Band to the
historical Keetoowah Society, a Cherokee religious and cultural
society. In fact they are two distinct and separate organizations. The
Keetoowah Society continues today as an active part of the Cherokee
culture. They are governed by a traditional chief and seven medicine
men. They disavow any relationship to the United Keetoowah Band.
This was Swimmer's fantasy. For nearly 60 years, the UKB has struggled to
make the public and Federal government understand that the UKB is distinct
from the Nighthawks at Stokes Grounds (northeast of Vian) or Nighthawks at
Redbird's Grounds (northwest of Vian) in Oklahoma. Starting on 27 April
1979, in efforts to confuse the public, CNO disseminated the story that the
UKB was claiming ties to or dominance over the Nighthawks to serve CNO's
own political agendas. The Nighthawk Keetoowah Society, consisting of at
least four continuing factions, continues to claim to be keepers of culture
and non-christian doctrine. The UKB is the successor to the Keetoowah
Society prior to the creation of the Keetoowah Society, Inc., to the
Keetoowah Society, Inc., itself, as well as to all the other Keetoowah
factions of the period 1937-1950 whose members affiliated with the UKB.(*:
IV; File # 43292) That is history. If the Nighthawks, or quarter-bloods in
CNO, wanted to organize under a charter extended by the UKB, they could
apply today, under the 1950 UKB Charter.
F. Swimmer's abject ignorance of Keetoowah history is clearly evident
in the following statement:
As far back as the late 1930's prior to its federal charter, the
United Keetoowah Band tried to establish a relationship to the
historical Keetoowah religious society. In fact the United States
Solicitor's office issued an opinion regarding the United Keetoowah in
1937. The Opinion states in no uncertain terms that the United
Keetoowah Band was not eligible to organize a tribal band since it did
not function as a government. Indeed, the United Keetoowah Band is a
creature of Congress with no historical or governing authority prior
to its formation at the request of Cherokee Nation Principal Chief
Bill Keeler in the early 1950's.
Every sentence, a lie. The reader will recall that Redbird Smith's own
family endorsed the Keetoowah Society, Inc.'s leaders in the 1920s, at the
formation of the old Executive Council, and urged Nighthawks at that time
to support a reorganized tribal government. Later, when the Nighthawks
realized that the majority of Keetoowahs, especially professing christians,
would not hand leadership over to the Nighthawks, the Nighthawks claimed
that in future they would withdraw from all reorganization plans and
political activity. When Organization Field Agents A. A. Exendine and Ben
Dwight invited Chief Sam Smith to represent the Nighthawks at initial
meetings to establish a method under which the Keetoowah Indians could
reorganize under OIWA and IRA, Smith notified Exendine that he would not
participate. Exendine's Coordinator, A. C. Monahan, explained to Smith that
while the Keetoowahs would united under one umbrella, each entity would
retain its local autonomy and administer its own benefits or funds to its
own members. The Nighthawks denied their own political identity as a
band.[Memorandum, 13 June 1939, Ben Dwight, Organizational Field Agent for
the Indian Service, to Regional Coordinator for Organization A. C. Monahan
Re: Keetoowah Organization, summarizing the Division's activities with
regard to the UKB (Fort Worth NARA)]
Two years after the Kirgis Opinion, BIA's Five Civilized Tribes
Regional Organization Coordinator A. C. Monahan learned that the Keetoowah
Society, Inc., was the source for all the other factions, and that the
Corporation had held a Federal Corporate Charter as a political entity
since 20 September 1905. Monahan ordered agents Dwight and Exendine to aid
the factions to reorganize. D'Arcy McNickle's determination of 24 April
1944 found the UKB was a historical tribe. On 5 June 1944, the Department
decided not to ask the Solicitor's Office revisit the Kirgis Opinion, but
to ask Congress to clarify the UKB's status legislatively (see full text
above). Assistant Secretary Fortas's most important finding dealt with the
political identity of the Keetoowah Band, because without that, he could
not override the Solicitor's Opinion's reasoning:
When legislation was pending in Congress in 1905 to dissolve the
tribal governments of the Five Civilized Tribes, the Keetoowahs
applied for and received a charter of incorporation through the United
States district court. The intention in this, as in all courses
followed by the Keetoowah group, was that of keeping alive Cherokee
institutions and the tribal entity.(Senate Report No. 978 to accompany
H. R. 341, 79th Cong. 2nd Sess., 21 February 1946; and House Conf.
Report No. 2705 to accompany H. R. 341, 79th Cong., 2nd Sess., 30 July
1946; Emphasis added)
Note well, Fortas here was very moved by the intent of the Keetoowah group,
in "keeping alive Cherokee institutions and the tribal entity." Those are
activities proper to a political entity, not to a club or religious order,
unless one is the Pope or the Dalai Lama. Fortas did not dispute with the
legal findings of Kirgis, given the facts of which Kirgis was aware. Please
recall, however, that Kirgis was ignorant of the existence of the
Keetoowahs' Federal Charter of Incorporation when he penned his Keetoowah -
- Organization as a Band Opinion.
The Department had neglected the existence of that Charter until Levi
Gritts brought it to the attention of Regional Coordinator for Organization
A. C. Monahan in July 1939. The Organization Field Agents and their
Regional Coordinator, A. C. Monahan, first learned about the 20 September
1905 Federal Charter of the Keetoowah Society, Inc. (and hence, the reason
why the "Inc." was called and "Inc.") in July 1939, and therefore were the
first to understand (unlike Dr. Charles Wisdom and Ass. Solicitor Kirgis)
that the Keetoowah Society, Inc., already was a polity at Federal Indian
law. Therefore, the old Charter was a key item in the Keetoowahs' argument
that they could be identified as a previously-recognized polity, and Fortas
knew it. Fortas strongly supported the legislation.
The history of UKB reorganization shows that the UKB was a political
coalition, produced when the vast majority of Keetoowah Indians merged with
the members of the Inc. under the leadership of a coalition government of
John Hitcher to form the UKB in 1939. The organization process destroyed
the career of Levi Gritts, and left the Inc. an empty shell, years before
the members adopted the 3 October 1950 UKB Charter, Constitution and By-
laws. The records also prove that the UKB is the legitimate successor of
the Inc. and the other factions, all of whom have the right to form
separate OIWA-chartered organizations under the auspices of the UKB.
Note also that Mr. Swimmer affects a terrible problem keeping dates
straight. If the UKB was the creature of Bill Keeler, then he started his
creation in 1948 or thereafter. Bill Keeler never requested the formation
of the UKB, because the UKB Constitution and Charter were written and in
the process of approval at the Interior Office in Washington, D. C., before
Keeler arrived on the scene. Finally, in adverting to the role of Congress
in this business, one would have thought Mr. Swimmer would have noticed the
date of the Act: 10 August 1946, two years before Cherokee business became
Keeler's business.
G. Swimmer continued his descent into bathos with the following:
The leadership of the United Keetoowah Band also tried to compare
itself to the Creek Tribal Towns. There is a great deal of difference
between the Creek Tribal Towns and the United Keetoowah Band. The
Creek Tribal Towns functioned as tribal governments even prior to the
Trail of Tears.
The Creek Talwas, or Towns, indeed derived from the old eastern Creek
settlements. The Keetoowahs trace themselves to Keetoowah Mother Town and
her surrounding settlements in North Carolina, as D'Arcy McNickle
determined on 24 April 1944. Many Keetoowahs trace their specific family
lines to persons, including Chiefs, who originated from those settlements.
No one has raised the question whether all or any members of the Creek
Towns can trace their specific ancestry to the ancient eastern Creek towns.
Furthermore, Keetoowah tribal towns, ceremonial grounds and gathering
places have existed at various sites since the removal, on trust or fee
land. Today's Nighthawks at Stokes Smith's grounds have no monopoly on
Keetoowah towns and ceremonial grounds, modern or historical. Swimmer had
opposed the separate acknowledgment of the Creek Towns, but had lost his
argument by 1990, and could only grope for the straw that somehow the cases
were different.
Keeler's final statement provided the real underpinnings to the 1991
CNO assault on the UKB:
The other important issue to consider is the fact that the
overwhelming majority (over ninety-five percent) of the membership of
the United Keetoowah Band are members of the Cherokee Nation of
Oklahoma.
Not even 95% of the Dawes enrollees whose names appeared on the 1949 Base
Roll ever voluntarily registered with CNO. BIA investigators discovered in
1990 to their great chagrin that Swimmer's claim was wishful thinking.
H. Swimmer continued:
Members of the United Keetoowah Band receive services provided by the
Cherokee Nation of Oklahoma, they are employed by the Cherokee Nation,
and they serve on the Cherokee Nation Tribal Council. Two members of
the United Keetoowah Band Tribal Council are employees of the Cherokee
Nation of Oklahoma! This is the only case I know of two "tribes" with
identical membership.
Members of the UKB receive services from CNO because they are in the UKB
service area, but to an unknown degree. Affidavits in the files of the UKB
indicate that the CNO has provided services to UKB members on a selective
basis since at least 1976, in direct violation of CNO's contracts to serve
UKB members in the CNO service area. CNO has thwarted at every turn the
efforts of the UKB to separate its service population from CNO's, and to
determine the extent to which CNO actually serves Keetoowahs, particularly
those who have voluntarily relinquished their CNO registration. Such
opposition could only come because CNO considers the UKB a serious threat.
Members of other tribes also receive services in the CNO service area, and
those who hold dual affiliation with the CNO and some federally-
acknowledged tribe other than the UKB do not seem to incur problems with
receiving dual services, to our knowledge.
One of the few consistent employers of Indians in northeastern
Oklahoma is CNO. In some professions requiring specialized skills, there
may be no other available employer in northeastern Oklahoma. Since the UKB
lacks resources to hire many staff and run programs due to the intervention
of CNO, Swimmer seems to be arguing that UKB members should count
themselves lucky not to suffer invidious political discrimination in hiring
in the CNO Personnel office.
True, certain members of the UKB who have not relinquished UKB
membership have run for office at CNO. CNO Councilman Woodrow Proctor is an
example of a former UKB Councilman who lost a run for UKB office, changed
affiliations, and won a seat on the CNO Council. The world is full
prodigals. Dual affiliation or citizenship only seems to matter in Indian
affairs. Swimmer's final word is extremely forgetful: "This is the only
case I know of two "tribes" with identical membership."
Only four sentences earlier, Swimmer had discussed the dissimilarity
of the UKB and the Creek Tribal Towns. Interestingly, two of the Creek
Tribal Towns have IRA Constitutions that specifically condone the members'
dual affiliation with Muskogee Creek Nation. Their challenge also is to
separate their service population (from Muskogee Creek Nation).
Furthermore, the UKB and CNO have different membership requirements, and
claim different Base Rolls, a distinction that appears lost on Swimmer and
his students. Like the Navajo in 1989, CNO continues to be incapable of
distinguishing between a descendency registration list and a tribal roll
adopted under a tribal constitution, laws and ordinances. There is no dual
enrollment problem between CNO and the UKB, as such.
I. Swimmer claimed, "it was always clearly understood that the
Cherokee Nation was the parent organization and that all the powers of the
United Keetoowah Band emanated expressly from the 1936 Act." D'Arcy
McNickle justified the 1946 Act by saying the UKB derived its power from
the historical Keetoowah Middle Towns, not from Old Cherokee Nation (1906).
CNO dates only to 1976. Had the UKB lacked historical existence, and had
the UKB organized a half-blood adult Indian community under Section 479 of
the IRA, its powers would have emanated from the Trustee U. S. A., via OIWA
(1936), IRA (1934), and the 1946 Act, not from CNO's CNCA (1976) language
condoning clan participation! Recall the historical record:
1) Federal legislation greatly diminished the inherent
sovereignty of Cherokee Nation, leaving certain, primarily
administrative functions intact (1890-1906), under the direct
supervision of the President and his agent, generally the Secretary of
the Interior. References to the "dissolution" of the Cherokee Nation
government appeared in the history and in the language of certain
legislation. The government was essentially dissolved, with the
exception of certain residual powers, on 4 March 1906.
2) Having failed at efforts to keep a tribally-elected, rather
than presidentially-appointed, Cherokee government in force, the
Keetoowahs realized that they were on their own, and resolved to rely
on their original governmental form, the foundations of which they
brought with them to Oklahoma. Keetoowah Society, Inc., in
anticipation of the eventual dissolution of the Cherokee Nation,
acquires a Federal Charter (20 September 1905; see 24 April 1944
determination of D'Arcy McNickle, Tribal Relations Branch).
3) Subsequent Federal legislation restored certain aspects of
the inherent sovereignty of Cherokee Nation, dealing with
administrative functions, in order to protect residual property
interests (1906-1930s).
4) Acting Solicitor Frederic L. Kirgis found the Keetoowah
Society ineligible to reorganize under OIWA and IRA.(Opinions of the
Solicitor of the Department of the Interior Relating to Indian
Affairs: 1917-1974, Vol. I (Washington, D. C.: U. S. Department of
the Interior, 1975), p. 774; Opinion, Keetoowah -- Organization as a
Band 29 July 1937)
5) The Department of the Interior found the Cherokee Nation,
organized under the revised 6 September 1839 Constitution, a
government essentially dissolved in 1906, to be ineligible as such to
reorganize under OIWA and IRA. Field investigators found Cherokee
citizens, with the exception of the Keetoowahs, had abandoned tribal
relations and had no interest in reorganization.[MEMO TO INDIAN
ORGANIZATION, 25 October 1937, from Director of Lands (WDW) to Daiker,
Indian Organization (enclosure 1310901)]

6) The Keetoowah Society, Inc., and other Keetoowah factions,
started organization work under the supervision of A. C. Monahan,
Regional Coordinator for Organization at Five Civilized Tribes Agency,
upon the discovery that indeed the Keetoowah Indians had a basis for
claiming historical existence as a recognized polity of Indians,
August 1939. Investigators later find Kirgis was ignorant of the
existence of the 20 September 1905 Keetoowah Society, Inc. Federal
Corporate Charter, and its legal effect. In a determination of 24
April 1944, Tribal Relations Branch officer D'Arcy McNickle
categorically repudiated the Kirgis Opinion, and in a meeting on 5
June 1944 with BIA Chief Counsel Ted Haas, agreed that rather than
simply ask the Solicitor to rescind the old Opinion and submit
another, that the Department would recommend to the Secretary and
Congress that Congress pass legislation to clarify the status of the
Keetoowah Indians, thereby allowing the Band to reorganize under OIWA
and IRA.
7) Congress, on the advice of the Acting Secretary and other
agencies, passed the 10 August 1946 Act acknowledging the UKB's
eligibility to reorganize under OIWA and IRA. The legislative intent
and statute itself contemplate recognition of a united entity,
initially a coalition government.
8) UKB reorganized under OIWA and IRA, adopting a Charter,
Constitution and By-laws in a Federal secretarial election on 3
October 1950, and proceeded to function with virtually no Federal
assistance as a federally-acknowledged tribe. The Charter provided for
the eventual recognition by sub-charter of any other Cherokee
descendant group with whom its own members are allowed to share
membership, at the discretion of the UKB Council. During Termination,
the BIA refused to cooperate with every development proposal in
keeping with the OIWA and IRA that the UKB Tribal Council submitted.
9) After 1960, the BIA and Cherokee Nation or Tribe
investigated the possibility of establishing services and programs for
Cherokees in the 14 county region, formerly Cherokee Nation,
concluding that the only possible solution was to make the UKB the
vehicle for providing programs and recognition.
10) Once Cherokee tribal programs were off the ground, the UKB
had little success retaining control of the very programs they
fostered, and even access to services. Independent ventures failed as
well, partly due to the (documented) collusion of their own legal
counsel, Earl Boyd Pierce, with BIA and CNO officials to stop the UKB.
11) The Act of Oct. 22, 1970, 91st Cong., 2nd Sess., P. L. 91-
495, 84 Stat. 1091 (1970), the Bellmon Bill, "Authoriz[ed] Each of the
Five Civilized Tribes of Oklahoma to Select Their Principal Officer .
. . ." Federal court challenges determined that the presidentially -
or secretarially - appointed Principal Chiefs of Cherokee Nation since
1906 were bona fide heads of state. Other litigation addressed the
question whether the Cherokee government was terminated in 1906. On 2
October 1975, Commissioner Morris Thompson and Principal Chief Ross O.
Swimmer approved a draft CNO Constitution determining that the
automatic citizenship class shall consist of the Cherokee Dawes
Commission enrollees, and that descendants shall be eligible for
registration as member-descendants.
12) Commissioner Louis Bruce, in American Indian Tribes and their
Federal Relationship, Plus a Partial Listing of other United States
Indian Groups (Wash., D. C.: U.S. Dept. of Interior, BIA, March, 1972)
declared that the UKB is a fully recognized Class 1 OIWA/IRA tribal
entity, while Cherokee Nation remained an unorganized Class 3 service
population.
13) On 5 July 1976, Cherokee voters adopted the draft
Constitution, purporting to supersede the 1906 constitution, but CNO
leaders claim in Federal court that the old Constitution was dead in
1906, or that the present government is the full successor to the 1839
- 1906 government, as circumstances demand. The 1976 Constitution
purported to sanction affiliation of any CNO registree with any "clan"
or other subordinate entity within CNO. The Harjo case determined that
the 1906 and related Acts did not terminate the Five Tribes as such,
and that the 1936 Act assured them the enjoyment of their inherent
sovereignty, as a general principal. That case did not consider or
discuss the 25 October 1937 Land Division determination regarding the
eligibility of Cherokee Nation to avail itself of the benefits of OIWA
and IRA, or contain any reference to the intent of Congress, the BIA
and the UKB regarding the implications of UKB reorganization. No
provision at Federal case law, and no Act of Congress, allowed CNO to
avail itself of the benefits of OIWA and IRA reorganization free of
the duty of actually taking the steps to reorganization.
14) In the Federal Register, Vol. 44, No. 26, Tuesday February
6, 1979, pp. 7235-7236, the Secretary of the Interior listed the UKB
as a federally-recognized, service-eligible entity. The Department has
since characterized this and similar publications as binding
determinations of the Department regarding the recognition of tribes,
both in Federal litigation and in congressional hearings.
15) Characterizing the organization of federally-acknowledged
tribes listed in the 6 February 1979 Federal Register notice, on 20
November 1979, Ms. Patricia Simmons, Tribal Relations Specialist,
submitted to the Chief, Branch of Tribal Relations, a detailed report
titled, "Organizational Status of Federally Recognized Indian
Entities." Simmons surveyed a category (p. 2) of "Officially Approved
Organizations Pursuant to Statutory Authority (Indian Reorganization
Act: Oklahoma Indian Welfare Act; and Alaska Native Act), finding (p.
3), UKB had a Council organized under a Federal Corporate Charter.
Cherokee Nation (with a Council) was listed iIn the "Other" category
of "Officially Approved Organizations Outside of Specific Statutory
Authority," (p.7).
Here ends our short list of crucial departmental determinations and actions
regarding the organization of the UKB and CNO. Though many questions remain
regarding the inherent authority of CNO, no Act of Congress or other
determination supports the proposition that the UKB's organization is in
any way subordinate or inferior to that of Cherokee Nation of Oklahoma
today. One more important historical event ends this history and starts the
revisionist history of the UKB according to Ross O. Swimmer:
16) Principal Chief of Cherokee Nation Ross O. Swimmer denied UKB's
historical existence for the first time of record to Oklahoma Senator
Henry Bellmon, in a Letter, 27 April 1979. Swimmer claimed the UKB was
"created" by the accidental inclusion of their name in the 6 February
1979 Federal Register notice; see also Letter, 30 April 1979,
Principal Chief of Cherokee Nation Ross O. Swimmer to Oklahoma Senator
David Boren, denying UKB's historical existence.
Swimmer's claims that the UKB is a sovereign inferior to CNO, that the UKB
has no rights as a Federal-Indian tribe, regardless of the supposed source
or basis of those claims, do not antedate 6 February 1979. Indeed, we have
found none earlier than 27 April 1979. Careful archival research has
recovered no written record, no oral recollection or any other plausible
evidence that before 1979, anyone ever believed in or subscribed to
Swimmer's revisionist mythology that first appeared in his lobbying letters
of 27 and 30 April 1979. The paper trail shows that no officer of the BIA,
no Federal legislator, no member or officer of Cherokee Nation of Oklahoma,
and no representative of the old Keetoowah factions ever fostered or
endorsed the falsehoods Swimmer announced as facts in those two 1979
letters, until Swimmer fabricated and disseminated them. Lacking any
evidence to the contrary, one can only conclude that Swimmer's statements
alone supplied the core dogma for CNO's continuing crusade against the UKB,
and to all appearances, might continue to do so for the foreseeable future.
The completion of the contract for the CNO self-governance pilot
project triggered another UKB suit against the Secretary, asking mandatory
injunctive relief, including that the Secretary extend trust protection to
the Band, as well as all program and funding eligibility as OIWA and IRA
required, all unallotted lands and trust assets as the OIWA and UKB Charter
prescribed, an accounting from the Secretary for all funds and programs to
which the Band should have been beneficiary under IRA, OIWA and the 1946
Act, and $10,000 million in damages.(The United Keetoowah Band of Cherokee
Indians in Oklahoma v. Lujan, Civil Action NO. 90-C-608, 1990; Leeds 1992:
202) The Secretary sought dismissal for lack of subject matter
jurisdiction, personal jurisdiction of the Court over the Secretary, for
failure of the Band to state a claim for which the Court could grant
relief, and time bar.(Answer to Civil Action NO. 90-C-608, 1990; Leeds
1992: 202)
In July 1991, Mankiller's staff prepared a position paper to deliver
to the BIA attempting to substantiate CNO's claim to authority over the
UKB. William Smith's faction of the Nighthawk Keetoowahs at Stokes Smith's
Grounds at Pinhook northeast of Vian, unlike the opposing Redbird Smith
Nighthawk faction at Blackgum northwest of Vian, jumped on the bandwagon,
supporting Chad Smith, a member of their grounds, who just happened to be
legal counsel for CNO and a former development program officer. Swimmer and
Mankiller continued to claim the UKB was an upstart organization engendered
by Pierce and Keeler, alleging:
The United Keetoowah Band has no direct link with any of the various
Keetoowah societies. The founding members of the UKB were all citizens
of the Cherokee Nation and members of various Keetoowah and other
cultural groups.
Again, CNO conveniently forgot that the UKB was the result of a coalition
including, therefore uniting, the various Keetoowah factions, with the
exception of a few holdouts from the other factions, and the Stokes Smith
Nighthawks.(Report[31 July 1991, Principal Chief Wilma P. Mankiller] to the
Department of the Interior [Assistant Secretary Eddie Frank Brown])
Mankiller cited letters from Gritts to Stigler to prove that, according to
Gritts, the Band was to be only a set of voluntary lodges composing a
social organization with no preconceived political or governmental agenda,
forgetting that in the course of organization, the main body of Keetoowahs
had steered precisely in the direction of organizing and OIWA and IRA
tribal government, leaving the holdouts in the decimated societies and
factions to their own devices. Levi Gritts happened to be one such holdout,
heartbroken and bitter because the reorganization movement had left him
stranded in his own rhetoric and leadership ambitions.
The truth is, most Keetoowahs did not see Gritts as a key figure in
the organization movement after 1939, and refused to hand him authority in
the elections that year. In petitioning for authority to reorganize with or
without including the mass of Keetoowahs who did not belong to his faction,
Gritts had taken the position that he would organize a recognized tribe of
his own narrow band of adherents and leave the rest of the Keetoowahs to
shift for themselves unless they were willing to submit to him. It is
Mankiller chose to rely entirely upon letters Gritts wrote in his last few
years, when he had long since lost all political or moral authority among
the Keetoowah Indians.(Letter, 21 September 1945, Levi Gritts to
Congressman Stigler; Letter, 3 December 1945, Levi Gritts to Congressman
Stigler) These letters had virtually no influence or effect on the
reorganization process for the UKB, and certainly had no effect on the UKB
in the long run. It is safe to say that most UKB members never dreamed
these letters existed, for they represented the pipe dreams of a wistful,
aging man, and not the official will of the people. Nothing in these
letters suggested Gritts had any authorization from Chief Jim Pickup's
Council to write these letters at all.
Mankiller also blithely ignored the political identity of the
Keetoowah Society, Inc., itself, and the role it had played in the claims
and recovery of damages for the Cherokees. The problem of the Keetoowah
Society, Inc. was that alone it could not represent all the Keetoowah
Indians. Even the Nighthawks had voted for Gritts in the 1920 election of
the National Convention of the Cherokees by blood.
Knowing no better, Mankiller's writers blurred the distinctions among
the Keetoowah factions, confusing the Keetoowah Society, Inc., with the UKB
as it existed just prior to the 1946 Act. Although BIA personnel sometimes
were confused over the issue, Congress did not intend that the broken
remnants of the Keetoowah Society, Inc., would gain the authority to
organize under OIWA and IRA. Gritts's dying society and the UKB were
entirely separate by 1939, and most of "his" followers had abandoned his
group to affiliate with the Band. It is important to recall that Gritts was
not even the Chief or President of "his" own group at any time between 1937
and 1950. Mankiller's paper contended that the UKB and CNO had worked
harmoniously at all times, except when the Band called for Keeler's
resignation. Mankiller's paper also cited Glory's ultra vires act of
encouraging Keeler to create what came to be known as the Jelanuno Trust as
proof of the UKB's voluntary abandonment of tribal relations in favor of
merging with CNO. Glory's acts in that vein led to ten years of rebellion
against him. While Mankiller gleefully cited Cohen's statement (relying
entirely on the Kirgis Opinion) that the Society, as such, was "neither
historically nor actually a governing unit of the Cherokee Nation but a
society of citizens within the Nation with common beliefs and aspirations,"
she utterly ignored D'Arcy McNickle's later finding that the Kirgis
Solicitor's Opinion of 1937 had been fatally flawed on many factual counts,
because Kirgis had based his findings on the superficial and cursory
investigation and musings of Dr. Charles Wisdom.(Position Paper on the UKB,
24 April 1944, D'Arcy McNickle) McNickle found that the Band always had
acted as a Nation. It is very doubtful that Mankiller ever has seen
McNickle's determination for the Department.
The BIA in the 1940s and 1950s had difficulty in recalling that the
UKB and the Society had retained different legal counsel, as they later
forgot the professional responsibilities of Earl Boyd Pierce when he acted
in conflict of the UKB's interests in conveying their confidences freely to
CNO and the BIA.(Leeds 1992: 200). There is little doubt that Mankiller saw
herself as an agent of the BIA, as had her predecessor Principal Chiefs, in
stating:
the information should be beneficial to the Department in the pending
litigation against the Secretary. . . . If any of your staff would
care to comment or supplement our report, please have them do
so.(Report[31 July 1991, Principal Chief Wilma P. Mankiller] to the
Department of the Interior [Assistant Secretary Eddie Frank Brown])
This parcel of lies was a product of the BIA, because the BIA authorized
CNO's actions in constructing and publishing it. Recall, all business
decisions and political activities of CNO require the Secretary's approval.
Hence, Mankiller's closing statement carries an inherent contradiction:
the issue of rights to govern is between the UKB and the Cherokee
Nation. The members of one organization are essentially the same as
the members of the other. It is an intratribal matter which should be
addressed in the first instance by the Cherokee Nation and the UKB.
Principal Chief Mankiller has pledged to make honorable resolution of
this . . . matter both an official and personal priority.(Report[31
July 1991, Principal Chief Wilma P. Mankiller] to the Department of
the Interior [Assistant Secretary Eddie Frank Brown])
This was no intratribal matter, no civil war; it was a scorched earth
policy, and Brown was a knowing party to it.
Bill Rice, counsel for the UKB, appraised the ongoing trust violation
litigation of the UKB against the Secretary, and declared that the BIA
would settle out of court. He suggested that the UKB Council pass a
resolution allowing the case to be dismissed with prejudice. He opined the
BIA would not agree to settle unless the UKB restricted membership to UKB
members who were unaffiliated with the CNO. The Council promptly enacted an
ordinance requiring UKB members to relinquish their CNO registration or
other tribal affiliation or membership.(UKB Council Meeting Minutes, 1
September 1990; UKB Membership Ordinance 90 UKB 9-4 16 September 1990;
Leeds 1992: 202) This most detailed of the UKB Membership Ordinances
provides that any descendant of 1/4 Cherokee Indian blood of any enrollee
on the 1949 UKB Base Roll, or on any other historical Cherokee Roll, shall
be eligible for enrollment in the UKB. Final determinations of Cherokee
Indian blood quantum rest with the UKB Tribal Council.
However, unable to use any other source than the Dawes Roll for
registration, and unwilling to impose any blood quantum criteria at all,
CNO already had been doing everything possible to stop the wave of UKB
relinquishments, including lying about the significance of dual
affiliation, even to Council members!(Letter, 8 November 1988, Lela
Ummerteskee, Office Manager, Cherokee Nation of Oklahoma Registration
Office, to John Ross, Jr., Treasurer, UKB) Upon notification of his intent
to relinquish, the Cherokee Nation registration told Tribal Treasurer John
Ross, Jr.:
[P]lease be aware that you do not have to relinquish your membership
with us, simply to register with the Keetoowah Band. You may be
members of both.(Leeds 1992: 203)
The Council chose a process of piecemeal divorce from CNO, undertaken at
the individual level and involving every tribal member, as the only lasting
solution.
In October 1990, Chief John Hair and Bill Rice visited Secretary Lujan
in Washington, D. C. Lujan plausibly denied he never had heard the Band was
suing him. Lujan claimed that he knew nothing of their troubles, and that
genuinely hoped for a resolution in the Band's favor.(UKB Special Council
Meeting Minutes, 21 October 1990) Flabbergasted, the UKB Council didn't
know whether to laugh or cry. In United Keetoowah Band - Cherokee Nation,
30 October 1990, Dr. Eddie Frank Brown wrote to the Solicitor of the
Department of the Interior, regarding a position paper he had prepared at
the Secretary's request on the UKB issue after the UKB delegation's visit.
In requesting the Solicitor's concurrence, Brown concluded, "the United
Keetoowah Band has been recognized as a tribe since 1950, and we do not
want to withdraw that recognition. Absent Congressional action, we do not
have the authority to do so." He feared that litigation might "result in a
decision which has far reaching consequences not only for the Department of
the Interior but for the Cherokee Nation as well." Brown said the Band was
right about the P. L. 93-638 claim, and the BIA urged a compromise of some
sort, with reservations:
The United Keetoowah Band is a federally recognized tribe. An
administrative decision should be issued conceding the Band's right to
direct ISDA funding but declining to change our administrative
decision on the trust land issue.
By conceding the right to direct funding, we eliminate from the
litigation our weakest point so that we do not undermine the
credibility of our position on the other issues. The BIA would be
acting consistently with its previous statements on the Band's
rights.(United Keetoowah Band - Cherokee Nation, 30 October 1990)
The BIA began negotiations to hold meetings between CNO and the UKB, but
the Band declined to return to the table with the CNO, recalling the
humiliations of earlier meetings.(Letter, 3 October 1990, Area Director,
Muskogee Area, Merritt Youngdeer to Principal Chief Wilma P. Mankiller;
Leeds 1992: 204) Brown conceded that CNO was doing everything possible to
avoid a real resolution of the dual affiliation claim against UKB.
Secretary Brown was well aware of the CNO's plan to usurp the UKB tribal
government and terminate it, and his awareness is reflected in BIA
memoranda about the UKB/CNO controversy:
The Band has tried to resolve this problem by passing . . . an
ordinance prohibiting dual membership. It may also prevent the
Cherokee Nation's apparent attempt to elect a slate of officers which
would agree to the dissolution of the Band as an independent
entity.(United Keetoowah Band - Cherokee Nation, 30 October 1990)
This dissolution, of course, would only be possible with the Secretary's
approval. The Secretary has to approve CNO's actions at every step.
Mankiller had informed Swimmer and others of her plan to subvert the UKB by
planting her allies on the Council, in order to get them to vote to rescind
the UKB's OIWA Charter, by exercising the authority to do so at Section 8.
The Reformed Keetoowahs campaigned to defeat the Band members who were
running for office to preserve the status of the UKB as a distinct tribal
entity and work for the clarification of the "dual affiliation" issue.
Assistant Secretary Eddie Brown believed that CNO would stage a successful
coup, but did nothing, acquiescing to CNO's asinine claim that the struggle
was "intratribal."(Leeds 1992: 212) There is little doubt that while this
assault technically was not an official action of CNO and the BIA, the
activities of the Reformed Keetoowah Party had the full endorsement of CNO
and condonation of the Secretary. Therefore, the entire responsibility for
CNO's attack on the UKB rests at the door of the Secretary.
The father of Chad Smith, Nelson Smith, was a candidate for Chief.
Three other "Reformed Keetoowahs" also filed. These individuals had
enrolled in the UKB, but none ever had participated in tribal functions
since applying for enrollment. The Reformed Keetoowah candidates never had
attended UKB meetings, and were really representatives of CNO. The
Ringleader, Chad Smith, was legal counsel for CNO and the Nighthawk
Keetoowahs. He has declared that the UKB has been riding the coattails of
the Nighthawks, when anyone familiar with the documented history of the
UKB, the Keetoowah Society, Inc., and the Nighthawks can prove
otherwise.("Keetoowah Society files brief in UKB smokeshop case," Cherokee
Advocate, December 1992) Half the Reformed candidates apparently were not
Oklahoma residents. Of the candidates on the slate, Nelson Smith (a
Gatlinburg, Tennessee resident at the time of his most recent enrollment
update) is now deceased. Others have moved out of the 14 counties or are
otherwise unqualified to hold office today. All the "Reformed Keetoowahs"
either had close ties with, or actually were employees of, CNO. They openly
declared their intent to use Section 8 of the UKB Charter to self-terminate
the UKB as their sole platform. Chad Smith was vocal throughout 1990 as a
spokesman for CNO and as a candidate for UKB office in declaring his intent
to resolve the intertribal dispute by assisting his father in dissolving
the UKB once Nelson Smith was in office as UKB Chief.
Interestingly, the membership records of the UKB indicate that Nelson
and Chad Smith, though members of the UKB, were not in good standing as
full members. Their names appeared on a 15 March 1986 verified list of
those UKB members whose membership files were incomplete or deficient in
1986. It does not appear that they ever resolved the deficiency. It appears
that their candidacy was entirely founded on the hope of a quick
termination of the UKB.(For a detailed discussion of the UKB election of
1990, see Leeds 1992: 205-208)
In the 1990 election, the winning Executive Officers were:
John Ross, Chief
Jim Henson, Vice-Chief
Jimmie Lou Whitekiller, Secretary
Norma Fourkiller, Treasurer
Jim Proctor, Richard Manus, Henry Doublehead, Jackson McClain, Mary
Stiglets, Dora Grayson, Adeline Proctor Smith, Mose Killer, Susan Adair,
Emma Holland, were elected to the Council. (Since the death of Jackson
McClain and the resignation of Mary Stiglets, Jim Pritchett and Charlie
Bird have been appointed to complete those terms. Jacob Cobb and Allogan
Slagle were appointed in succession to complete Dora Grayson's term.)
The BIA's investigator of the UKB 1990 election, Anadarko Office
Tribal Specialist Suzanne Chaney, found the election entirely proper,
though the election regulations were more stringent than the Constitution
demanded.(Letter, 24 December 1990, Tribal Government Services Specialist
J. Suzanne Chaney to Muskogee Area Director; Leeds 1992: 208) Rather than
exhaust the UKB's administrative remedies, Chad Smith went straight to the
BIA, and eventually won an IBIA determination setting aside, in part, the
results of the 1990 election, but allowing the UKB Council to continue to
function with a "BIA approved" Council. Mankiller wanted an inquisitorial
investigation of the UKB, and so Chaney's findings were suppressed quickly.
The BIA complied with CNO's demand for an investigation of the UKB's roll,
only to find to the chagrin of many that the UKB not only had its own Base
Roll, but had at least 3,000 members who never had registered with
CNO,(Leeds 1992: 212-213; UKB Council Meeting Minutes, 1 December 1990),
out of a UKB resident Oklahoma service population of some 4,500, with
relinquishments coming in every month. The relinquishments have continued,
so that today, over 4,000 UKB members residing in Oklahoma are certified as
having no affiliation with CNO.(UKB Membership records) In July 1992, the
BIA certified the UKB's exclusive membership and resident service
population in Oklahoma at 4,500.(Letter, 24 July 1992, Area Tribal
Operations Officer Rosella C. Garbow, TO WHOM IT MAY CONCERN)
Cherokee Nation of Oklahoma expressed its views again in a meeting of
30 November 1990 involving Principal Chief Wilma Mankiller and
representatives of CNO, and Steve Gleason, Staff Assistant to the Assistant
Secretary, and follow-up memo (Letter, 6 December 1990, Ross O. Swimmer of
Counsel with Hall, Estill, Hardwick, Gable, Golden and Nelson, to Dr. Eddie
Frank Brown, Assistant Secretary, Indian Affairs) Membrino has taken the
position that the Department should never entertain a request by the UKB to
take land in trust outside the area of the original Cherokee reservation.
Cherokee Nation of Oklahoma's deeply evil campaign to prevent any land
acquisition at all stems from the certain desire to obliterate any trace of
the Band. Membrino posed:
To do so would be an ineffective, extraordinary and potentially
destructive departure from Department policy. First, the consent
provision of 25 C. F. R. Section 151.8 applies to the UKB taking land
in any other tribe's former reservation in Oklahoma. All of Oklahoma
is the former reservation of one or another of the several tribes that
occupied or were removed to Oklahoma. See C. Royce, Indian Land
Cessions in the United States. 18th Annual Report of the Bureau of
American Ethnology (1896-1897). This if not the consent of the
Cherokee Nation, then the consent of some other tribe would be
required to take land in trust in Oklahoma under the Department's
regulations.(Letter, 6 December 1990, Joseph Membrino of Hall, Estill,
Hardwick, Gable, Golden and Nelson, to Dr. Eddie Frank Brown,
Assistant Secretary, Indian Affairs)
More than one tribe has suggested willingness to allow the UKB to acquire
land outside the 1907 boundaries of CNO. There is no reason to doubt that
Swimmer was aware of these offers. Membrino proceeded:
Second, the Department's regulations limit the justifications for off-
reservation land acquisitions (25 C. F. R. 151.3(a). In addition, the
Secretary recently expressed concern about out of state trust land
acquisitions. [See Indian News, Vol. 14, No. 11 (August 17, 1990),
Memorandum to the Assistant Secretary -- Indian Affairs from the
Secretary (July 19, 1990)].(Letter, 6 December 1990, Joseph Membrino
of Hall, Estill, Hardwick, Gable, Golden and Nelson, to Dr. Eddie
Frank Brown, Assistant Secretary, Indian Affairs)
These justifications were weak, particularly where, alternatively, CNO has
argued for years that the UKB has no right to land acquisition in Oklahoma.
As strident as Swimmer's protests are in this memo, the narrative makes it
very clear that the UKB has the inherent rights of a federally-recognized,
including the right to ask the Secretary to accept land in trust by various
means for the benefit of the Band. Swimmer ignores the obvious: There can
be no right without a remedy. For a sovereign, the remedy to the denial of
sovereignty is never subjugation to a hostile sovereign. However, these
considerations did not move Membrino:
Third, if the request were made for land to be taken in trust in some
state other than Oklahoma, we would expect that state to register
strong opposition. The request could be viewed as an attempt by the
Department to foist an Oklahoma "problem" on another state. . . .
(Letter, 6 December 1990, Joseph Membrino of Hall, Estill, Hardwick,
Gable, Golden and Nelson, to Dr. Eddie Frank Brown, Assistant
Secretary, Indian Affairs)
Joseph Membrino and CNO preferred to compound the UKB's problems by
assuring the conversion of surrounding states to his views, and by
creating, if not marketing, that opposition. [While the UKB was in the
process of exploring expansion into Arkansas, Chad Smith intervened with
local county and municipal officials, to the extent of inviting them to his
offices at Cherokee Nation in Oklahoma to be schooled in Cherokee Nation of
Oklahoma's view of things. The present fact is that Cherokee Nation of
Oklahoma has hired a team of lobbyists to prevent any development activity,
any possibility of the Band's participation in P. L. 93-638 or other
Federal programs, or land acquisition anywhere.] Membrino wrote:
We believe that such a strategy not only will be unsuccessful, but
also is likely to cause a reaction that would pressure the Department
to take land in trust for the UKB in the original Cherokee reservation
area. If the Secretary succumbed to that pressure, the ensuing waiver
or recision of the consent provision in 25 C. F. R. 151.8 would be
destructive of Cherokee Nation governing authority, and could signal
other subgroups of Indian tribes to press their case for separate
governmental and territorial authority.(Letter, 6 December 1990,
Joseph Membrino of Hall, Estill, Hardwick, Gable, Golden and Nelson,
to Dr. Eddie Frank Brown, Assistant Secretary, Indian Affairs)
CNO's solution was to assure the passage of language in the FY 1992 Budget,
Amendment 86, which prevented the Department from accommodating the UKB in
Oklahoma. The last argument was perhaps the most laughable:
Fourth, the longstanding hostility of state governments to tribes
exercising governmental powers has been exacerbated by what some are
describing pejoratively as the "marketing of Indian sovereignty." The
painstaking and successful development of the Cherokee Nation's
government and economy is at risk because of the activities of the UKB
to market a sovereignty that, in our view, it was never intended to
have.(Letter, 6 December 1990, Joseph Membrino of Hall, Estill,
Hardwick, Gable, Golden and Nelson, to Dr. Eddie Frank Brown,
Assistant Secretary, Indian Affairs)
Cherokee Nation of Oklahoma has nurtured the marketing of the UKB's
sovereignty into an art form. Membrino's concern elsewhere in his narrative
that the UKB might compete in any way with Cherokee Nation of Oklahoma for
the right to deliver services anywhere makes it clear that Swimmer's and
Chief Mankiller's concern is the protection of the financial interests of
Cherokee Nation of Oklahoma. Nowhere does Membrino express concern for the
well-being of the Keetoowah people, or address the past refusal of the CNO
to extend services to members of the UKB, though CNO's policies resulting
in that denial of services violates CNO's contractual agreements. The
narrative above clearly demonstrates that the UKB has carried its burden of
proving it is an acknowledged Indian Tribe in the full sense of Federal-
Indian law. CNO argues that the UKB was never intended to have sovereign
powers, but Federal law mandates that the UKB exercise those sovereign
powers, and that the U. S. defend the UKB, under the trust responsibility,
from aggressions by states, or other units of government, including
Cherokee Nation of Oklahoma. Cherokee Nation has built its "empire" on the
sovereignty and support of the UKB. Having served the purposes of Swimmer
and other CNO Chiefs, the UKB is supposed to simply fade away. CNO will not
serve UKB members even though their Self-Governance agreements require it.
That the UKB would want to survive is a challenge to CNO's purposes. Those
purposes expressly include the marketing of Cherokee Nation's sovereignty.
We respectfully submit that Cherokee Nation's Bingo Outpost, boasted
industries, and most recently, CNO's proposal to take over all the Indian
Health Services in the northeastern counties of Oklahoma under a P. L. 93-
638 contract, are not enterprises entirely divorced from a profit motive.
Recommendation: Discontinue any settlement negotiations in the
referenced cases that may be underway with the UKB in which the
Department would consider a proposal by the UKB to take land in trust
outside the original area of the Cherokee reservation. Adhere to the
policy underlying the regulations at 25 C. F. R. 151.(Letter, 6
December 1990, Joseph Membrino of Hall, Estill, Hardwick, Gable,
Golden and Nelson, to Dr. Eddie Frank Brown, Assistant Secretary,
Indian Affairs)
The policy underlying 25 C. F. R. 151 do not include absolutely preventing
a federally-recognized tribe to have any recourse. While the Department may
argue that unrecognized tribes are not entitled to due process, then it
must argue that recognized tribes are entitled to due process. The UKB's
attempts to accommodate CNO by acquiring land in trust entirely outside of
Oklahoma occasioned a campaign of defamation nearly without parallel in
CNO/UKB relations, primarily through the efforts of Mr. Chadwick Smith. In
a private meeting with Chief/Spokesman John Ross (1991-) in April, 1993,
Principal Chief Wilma Mankiller pledged that she will desist attacking the
UKB, and will support the UKB's land acquisition efforts, and help to
effect any legislative solution necessary to resolve the present conflicts
to the satisfaction of both tribes. No legislative Staff with whom the Band
has made inquiries since that time have been unable to substantiate that in
their discussions with Mankiller or her agents that CNO has any intention
of altering their tactics. The UKB only can conclude that CNO will be
satisfied with nothing less than the utter termination of the UKB.
The United Keetoowah Band expressed willingness to leave uncontested
and intact the Cherokee Nation's Self-Governance Compact with the United
States, and will not challenge the annual funding agreements under the U.
S./ CNO Compact. On 27 April 1990, the UKB Council adopted a resolution
stating their conclusion that "The Title II - Tribal Self-Governance
Demonstration Project by the Cherokee Nation of Oklahoma will not benefit
the United Keetoowah Band with the existing relations between the two
entities of the Cherokee Tribe of Oklahoma. The United Keetoowah Band of
Cherokee Indians in Oklahoma could be agreeable to the program with more
favorable working relations for the Band by the Cherokee Nation and Bureau
of Indian Affairs." So far, the New Federalism for Cherokee Nation of
Oklahoma meant only Termination to the UKB.
The BIA has contracted pursuant to P. L. 93-638 the functions of the
BIA that should be serving the Band to Cherokee Nation of Oklahoma.
However, Cherokee Nation of Oklahoma continues to refuse services to
enrolled members of the UKB who present their UKB enrollment credentials,
although the CNO Federal service contracts require CNO to provide services
to members of the UKB. This action directly violates the Federal
government's statutory and trust responsibility to have a direct
intergovernmental relationship with the UKB. The BIA continued to refuse to
accept land anywhere into trust on the Band's behalf, until Congress, in
1991, passed Amendment 86 to the FY 1992 Interior Budget Appropriations
Bill, and just as this clause barred any trust land acquisition in the
former boundaries of the Old Cherokee Nation without express consent of the
Cherokee Nation of Oklahoma, the clause also barred any P. L. 93-638
funding for the Band. Though the language of the latter Amendment was so
technically deficient that the BIA had to interpret it as applying solely
to the UKB, the Department of Health and Human Services interpreted the
clause as a bar to any funding for the UKB that is available to tribal
organizations, even though they are not even federally-recognized. This is
overkill, an act of pure malice on the part of CNO and its
agents.(Executive Summary, 20 March 1990, G. William Rice, Esq., General
Counsel for United Keetoowah Band of Cherokee Indians in Oklahoma, to Dr.
Eddie Frank Brown, Assistant Secretary of the Interior for Indian Affairs)
Membrino inquired in his Letter, 6 December 1990, to Dr. Eddie Frank
Brown, Assistant Secretary, Indian Affairs, whether, in view of the
government's admission in UKB v. Secretary that the UKB is eligible to
apply for Indian Self-Determination Act grants and contracts, the
government would respond to future applications by reducing the scope or
amount of funding under the Cherokee Nation's Self-Governance Compact.
Membrino first demanded that the Department "continue to reject contentions
that the UKB has governmental authority over Cherokee Nation interests,"
and further, "determine that the UKB's actions with regard to its own
affairs cannot infringe upon but are subject to the governmental authority
of Cherokee Nation of Oklahoma." He repeated his old claim that "the UKB
never had any governmental role to play in the affairs of the Cherokee
Nation." That statement could only be made out of ignorance, or in knowing
falsity.
Membrino argued that "the idea of introducing separate funding into
Cherokee country for UKB programs is certain to be controversial, aside
from the Cherokee Nation's opposition to funding a second government in
Cherokee territory." This, of course, is the same argument non-Indian
governments make against funding of Indian social-service programs,
generally.
Membrino claimed, "There is also the risk, long since identified by
the BIA, of double funding since the Cherokee Nation is committed to
serving all Indians who are members of the UKB." However, as members of the
UKB have learned in applying for those services at CNO agencies, that
"commitment" is not the same thing as "action." The UKB has long identified
a regular pattern of discrimination and denial of services at Cherokee
Nation of Oklahoma, since Swimmer's administration.
CNO's solution was predictable: Terminate the UKB:
Recommendation: The Department should unequivocally announce that the
UKB is subordinate to the Cherokee Nation in the area of the original
Cherokee reservation, and that nothing in the 1946 Act or the OIWA
qualified or eliminated the superior authority of the Cherokee Nation.
The BIA agreed that it would take no land in trust within the 14 counties
for the UKB without the consent of CNO; that it would retain the self-
governance compact with CNO; that it would not breath the FY 1991 funding
agreement; and that it would move to dismiss the UKB suit with prejudice.
Also, the U. S. would assert that the CNO was an indispensable party and
was immune to suit. Mankiller also wanted to prevent land acquisition
anywhere for the UKB, and any possibility of contracts of any kind for the
UKB. She also wanted the Band's election and roll invalidated.(Leeds 1992:
210-211)
After the November 1990 election, the UKB continued to move on
economic development, and established legislation for taxation, civil and
criminal procedures. They accepted 14 acres they hoped would be placed in
Federal trust.(UKB Resolutions 90 UKB 12-4 to 12-10, 27 December 1990)
Though in later months they struggled with the continuing challenge to the
seating of the new Council and Executive Committee, they continued to
function as a full-time working tribal government. Chief John Ross, a
graduate in Social Science and Business from Northeastern State University,
continued to press for peaceful and speedy resolution of the UKB's claims.
Chief Ross announced early that the Band wanted only to receive funding for
programs and recognition of its rightful territorial claims within the old
Cherokee Nation boundaries. In denouncing the UKB's claims as "fiction,"
Chief Mankiller said that while the date of the CNO Constitution was 1985,
the Cherokee Nation has existed since time immemorial. She made this
declaration, notwithstanding the Drywater decision that left Ross O.
Swimmer in office in 1976 on the premise that the 16 September 1839
Constitution was void as a result of the 1906 Act.(Muskogee Phoenix, 15
January 1991; Leeds 221) Further, the 1975 Constitution itself declared
that it superseded the 1839 Constitution. Mankiller also neglected to
mention the 4 February 1987 Elbert opinion. Elbert had held that the 25
October 1937 Land Division Opinion remained in effect. Among other issues,
that Opinion found Cherokee Nation as such incapable of reviving the 1906
entity under OIWA and IRA. While she contended correctly that the U. S.
Supreme Court had affirmed the Tribe's "full succession" to co-ownership of
the Arkansas Riverbed, recognition of a group's right to participate in
claims actions does not result in restoration of sovereign rights that
Congress has limited. Limited recognition still does not constitute
recognition of an historical tribe for all other purposes. Elbert
reaffirmed the rights of the Cherokee Freedmen, and the Delaware and
Shawnee Cherokees.(Leeds 1992: 221)
Early in 1991, UKB counsel G. William Rice observed that three
Cherokee entities existed in Oklahoma: the original Cherokee Nation,
composed of living allottees (who theoretically could create a
constitution, open the rolls, and enroll everyone they liked); the UKB, who
are the only successors to the original allottees who still constitute the
Cherokee Nation; and the administratively condoned entity of the 2 October
1975 CNO Constitution.(Leeds 1992: 222)
The BIA asked for New Tribes moneys for FY 1992 for the three
organized Creek Tribal Towns and for the United Keetoowah Band in the
spring of 1991, to cover "costs of determining tribal enrollment,
developing a plan of operation as a tribal government and identifying
necessary tribal functions." Chief Mankiller went ballistic, and
immediately focussed all her energies on stopping the funding for the UKB,
and then terminating the Band legislatively. In February 1991, Cherokee
Nation of Oklahoma persuaded Congressman Mike Synar (2nd D, OK) through the
offices of Washington lobbyists to block FY 1992 appropriations for the
UKB. On 28 January 1991, on CNO tribal stationary Principal Chief Wilma
Mankiller issued a Memo to J. Wilcoxen, Tommy Thompson, Diane Kelley, Pat
Ragsdale, Chad Smith, George Bearpaw, Pam Iron and Lynn Howard of the
Cherokee Nation Administration stating:
It is imperative that we get personal letters to the Oklahoma
Congressional delegation regarding the UKB. If the UKB is given
funding or new authority, it will come at the expense of the Cherokee
Nation.
Using Joe Membrino's attack strategy, Mankiller listed a set of eight
"talking points" for her Staff, alternative to her form letters:
1. There is no legitimate UKB government, no verified roll,
legitimate election practices, no land base and there is rampant abuse
of state law.
There has been a legitimate UKB government since 3 October 1950, and a
verified roll since 1950 as updated and amended by Tribal Council action
and transmitted to the BIA. CNO is still in litigation regarding the status
of land to which it holds title; however, a land base is not a requirement
of Federal acknowledgment. The independent exercise of tribal sovereignty
is not an abuse of state law. Mankiller continued:
2. Except for a designation in the 1946 legislation that all the UKB
to be organized as an organization under the Oklahoma Indian Welfare
Act, what legitimate independent status does the UKB have in fact and
in history?
This narrative has answered these questions in greater detail than may be
found in any published source, but the absence of such a published record
never was an excuse for ignoring the records in the National Archives and
at the Muskogee Agency. The problem is that CNO has had a safe bet until
now that the UKB never would acquire these documents or use them. Mankiller
continued:
3. What distinguishes the UKB from being [sic] a separate tribe as
opposed to an organization of Cherokees under the Cherokee Nation?
Mankiller apparently was alluding to Article XIV, "Clans," in the CNO
Constitution (CNCA, 1986), saying:
Nothing in this Constitution shall be construed to prohibit the right
of any Cherokee to belong to a recognized clan or organization in the
Cherokee Nation.
This language comports with the Indian Civil Rights Act, protecting
religious freedoms and association rights of persons under CNO
jurisdiction. This language is ineffective to subordinate the UKB or its
enrolled members to CNO. What distinguishes UKB from an organization of
Cherokees under the Cherokee Nation is the effect of the OIWA, the 1946
Act, the 3 October 1950 UKB Charter, Constitution and By-laws, the course
of conduct of the UKB, Federal government and CNO itself since 1937. Of
course Chief Mankiller is blissfully ignorant of all these matters.
Mankiller continued:
4. What controls does the Cherokee Nation have over outlaw behavior
by the UKB?
The Act of June 28, 1898, 30 Stat. 495, the Curtis Act. Section 26
stipulated:
That on and after the passage of this Act the laws of the various
tribes or nations of Indians shall not be enforced at law or in equity
by the courts of the United States in the Indian Territory.
Mankiller's real question was, "How can we get Congress to declare the
UKB's actions illegal?" On 24 August 1992, Acting Assistant Secretary of
the Interior Ronald Eden reaffirmed the Department's position that the UKB
is in absolutely no sense of the word subordinate to CNO. The towering
arrogance of Mankiller's statement partly provides its own answer, in
begging the question it states. First, the UKB would refer Mankiller to a
Letter dated 9 May 1950, in which Commissioner of Indian Affairs Dillon S.
Myer and William E. Warne, Assistant Secretary, approved the UKB
Constitution and By-laws, ordering that "All officers and employees of the
Interior Department are ordered to abide by the provisions of the said
[UKB] Constitution and By-laws." The view of the UKB is that to the extent
CNO refuses to abide by this order, and succeeds in efforts to lobby
Federal officials to disregard it, then the CNO is engaging in "outlaw"
behavior. Further, in his Letter, 15 October 1961, Assistant Chief Tribal
Operations Officer Pennington to Muskogee Area Director Virgil N.
Harrington, responding to Harrington's 7 August 1961 inquiry as to the
effect of Section 6 of the UKB's Charter, Pennington determined:
[W]e are of the opinion that to the extent the charter can proscribe
the powers of the Secretary of the Interior to review corporate acts,
it has terminated the requirement for Secretarial approval. Read
together, Sections 5 and 6 of the charter show clearly that it was the
intent of the framers of the document that the requirement for
Secretarial approval of the acts listed in Section 5 would end ten
years from the date the charter was ratified in the absence of action
by the Secretary to extend or shorten the period.(FOIA)
The question continually arises to what extent CNO uses Federal dollars to
lobby Congress, the States, and Federal agencies. Mankiller continued:
5. The UKB has no land base. How can it claim sovereign immunity?
The governing documents of any landless Oklahoma Indian tribe stipulating
to the sovereign immunity of such tribe become effective upon approval of
the Secretary of the Interior. The UKB has sovereign immunity because
Congress, the Tribe and the Secretary say so. The proper question would be
whether the UKB could waive sovereign immunity to trust property without
congressional authorization, because the UKB governing documents prevent
the UKB Council from selling tribal lands. The ability of a tribal
corporation to sue and be sued is a separate matter from the sovereign
immunity of the Tribe. Mankiller continued:
6. What is the actual number of persons on the UKB rolls pursuant the
membership ordinance which prohibit dual membership in the Cherokee
Nation and UKB?
This number continues to change monthly, always dramatically upward. In
1990, after a systematic review of the United Keetoowah Band's enrollment
and membership files (and a comparison of those data with the Cherokee
Nation of Oklahoma's data), the BIA Muskogee Area Office confirmed, that
more than 3,000 members of the United Keetoowah Band, including its Base
Enrollees, never were registered with Cherokee Nation of Oklahoma, and
therefore never had any form of dual affiliation with that entity. Some
4,700 UKB members either never voluntarily registered with Cherokee Nation
of Oklahoma, or once were registered (voluntarily or involuntarily), but
subsequently voluntarily relinquished their CNO registration. Since 1950,
the UKB has continued to add to its open Roll, and in 1990 adopted a new
Enrollment and Membership ordinance, which as amended, continues in effect.
Since 1990, over 450 enrolled members of the Band voluntarily have
relinquished their affiliation with any other Indian entity. Hundreds of
the original UKB members and Dawes enrollees who had registration or
membership in CNO have died. On 24 July 1992, Rosella C. Garbow, Muskogee
Area Tribal Operations Officer, declared:
This is to certify that records created in 1985 show that the United
Keetoowah Band of Cherokee Indians in Oklahoma has approximately 4,700
enrolled members residing within their service area.
UKB members have continued to relinquish their affiliation voluntarily with
any other federally-recognized tribe since that date. The 1986 United
Keetoowah Band Roll, completed during the P. L. 93-638 grant, was known to
be an official Tribal Roll for all purposes, duly adopted by the Tribal
Council, and authenticated by the BIA, within the meaning of Federal Indian
Law, in 1991. It is up-to-date, and there are regular monthly additions
through adoption, and clarifications of exclusive affiliation through
relinquishment from Cherokee Nation of Oklahoma. In January 1993, the UKB
Council has asked the Secretary to convene a secretarially-supervised
Federal election to amend the UKB Constitution, requiring 1/4 Cherokee
blood and exclusive enrollment in the UKB as qualifications of future
membership, while requiring current members to relinquish affiliation in
any other tribe by a set date. During the same period CNO claimed to have
registered fewer than 300 individuals over 1/2 blood, out of 20,000 new
registrees, and no one except the CNO registrar knows how many of these
individuals actually consented to registration, or involuntary re-
registration. The question arises, how many persons of less than 1/32
Indian blood, who never have set foot in the former boundaries of Cherokee
Nation, became registered in that period? Mankiller continued:
7. The UKB did not allow certain members to run for office, however
the same members were allowed to vote in the 1990 election. How can
that be justified?
The UKB attempted, in haste, to satisfy the objections of CNO and the BIA
regarding the participatory rights of CNO registrees that were members of
UKB. In that process, according to the IBIA, the UKB violated the rights of
certain candidates for office, but the reason cited is that the UKB was
attempting to satisfy what they perceived to be the demands of the BIA, as
a condition of P. L. 93-638 eligibility, instead of tribal traditional
governmental values. For the purposes of retaining voting rights, members
were a longer period to relinquish registration or enrollment in any other
tribe. The UKB is addressing the dual affiliation issue by requesting a
secretarial election under 25 C. F. R. 81, while refusing to recognize
CNO's touted "registry" as a Roll in a legal sense.
On the other hand, the UKB has discriminated against an entire class
of persons, not because of dual affiliation, but because of race. The
Cherokee Freedmen are entitled as a matter of law to vote in Cherokee
elections. CNO has denied services to them, also as a class, because they
are of African-American descent. The Freedmen lost their bid to require CNO
to allow them to continue to vote in CNO elections in the Nero case, solely
because they had not exhausted CNO's administrative remedies in their
attempts to regain voting rights. Their right to services was clarified in
an administrative ruling of the Assistant Secretary in 1988, in a Decision
that relied on the same 1937 determination that found the CNO was
ineligible to reorganize the Cherokee Nation under OIWA and IRA (Letter
determination, 4 February 1988, Hazel E. Elbert, Acting Assistant Secretary
of Interior for Indian Affairs, to James G. Wilcoxen, Esq., Wilcoxen and
Cate, Muskogee, Oklahoma) Morris v. Watt, 640 F.2nd 404 (1981) provided a
helpful study of the rationale for the proper reorganization of governments
of Five Civilized Tribes.
Mankiller continued:
8. Early Cherokee Nation treaties with the U. S. government
specifically the Treaty of 1866, states that the U. S. government is
required to prevent insurrection with the Cherokee Nation. By granting
negotiating status to the UKB that treaty is violated.
At best, this allegation is a stretch. First, even the congressional
determinations that for some purposes the 1906 boundaries of Cherokee
Nation exist (e. g., Tribal Land Consolidation Act, and the creation of
Federal Magistrate courts within the Cherokee Reservation's former
boundaries since 1991) do not grant the Cherokee Nation of Oklahoma
assurance from political opposition and economic competition. The UKB
derives its treaty rights from precisely the same treaties as CNO. [Letter,
8 May 1950, Assistant Secretary - Interior William E. Warne to
Superintendent W. O. Roberts, re: Keetoowah treaty rights.(*: IV; File #
43292)] Rennard Strickland, authority on Cherokee legal history, testifying
in the Tyner case regarding Horseshoe Bend Bingo (1988), regarding the
UKB's treaty rights, said:
They . . . possess those same rights of treaty that came to them from
having been Cherokee in the same way that the Oglalla Sioux who post
date the Sioux treaties possess.
On 4 March 1981, Congressman Synar introduced H. R. 2329, 97th Cong., 1st
Sess., "Conferring jurisdiction on certain courts of the United States to
hear and render judgment in connection with certain claims of the Cherokee
Nation of Oklahoma," providing:
That any tribe, nation, band, or group may bring a claim arising out
of the circumstances described in . . . this Act, if said claim is
held in common with the Cherokee Nation of Oklahoma. Any party to any
action thus brought under this Act shall have a right to review, as
provided under existing law.
Even Synar's own work product reflects his awareness that this band could
bring a claim arising out of the Act, because the UKB holds rights in
common with CNO. In Cherokee Nation v. United States, 80 Ct. Cl. 1 (1932),
the Court of Claims held that Cherokees by blood, calling themselves "The
Cherokee Tribe of Indians," excluding the various tribes and groups
incorporated into or adopted by the Cherokee Nation, had no standing to
bring a suit in the Court of Claims under the special Cherokee
jurisdictional Act of March 19, 1924, 43 Stat. 27. In 1950, after the UKB
separately organized from the UKB, the Band acquired the status of a
separate Band with its own standing to sue, as indicated in the Charter,
although arguably that status already existed after the 10 August 1946 Act.
For examples of tribal consolidation effected by intertribal agreement
authorized by a general treaty provision, recall that the Cherokee
Delawares and Absentee Shawnees have been found to have separate standing
to make claims to property held in common with Cherokee Nation, due to
their having common property interests with CNO dating to 1906, because
they are recognized as separate tribes for claims purposes within the body
of Cherokee Nation. [See: Cherokee Nation v. Blackfeather, 155 U. S. 218
(1894), regarding Shawnee and Cherokee; Cherokee Nation v. Journeycake, 155
U. S. 196 (1894), regarding Delawares and Cherokees; MEMO TO INDIAN
ORGANIZATION, 25 October 1937, from Director of Lands (WDW) to Daiker,
Indian Organization (enclosure 1310901) regarding other Cherokee citizens,
including white adoptees and Freedmen, to participate in judgment award,
finding Freemen have "all the rights of Native Cherokees," including the
right to vote on the adoption of a Constitution and By-laws by those tribes
under the jurisdiction of the Five Civilized Tribes Agency (163618)]
Members of the UKB lose none of their participatory rights as Dawes
descendants in Cherokee Nation property rights that existed in 1906, simply
by reason of their exclusive UKB membership. The proper question to ask is
why Muscogee Creek Nation and the Creek Tribal Towns, all OIWA tribes,
manage to coexist without insinuations of "insurrection" from Creek Nation.
Mankiller instructed Staff to write to Senator David Boren, Senator
Don Nickles, Congressman Mike Synar, Dr. Eddie Brown, and to Patricia Zell,
Chief Counsel, Senate Select Committee on Indian Affairs, with copies to
Principal Chief Mankiller. Mankiller's concerns did not include discovering
whether, as an OIWA/IRA organized tribe, the UKB had any justified claims
to sovereignty, separate Federal funding, or the like. Mankiller's proposed
examples for these letters follows:
I am writing to share my concern over current efforts of the United
Keetoowah Band to usurp authority of the Cherokee Nation in light of
recent UKB activities and a total disregard by leadership of what
constitutes responsible tribal governance. I am doubly appalled by UKB
attacks on Cherokee Nation sovereignty.
United Keetoowah Band efforts to govern the Cherokee Nation are
without merit and have caused division and possible civil disorder in
northeastern Oklahoma. Without your help, this will continue to cause
confusion and possible delay in delivery of services to Cherokee
people and jeopardize all programs contracted by the Cherokee Nation
from the federal government.
I am not alone in my concerns. The Cherokee Nation has over 1,000
employees and 114,000 members, most of whom live in Oklahoma. All
stand to lose if the UKB is not stopped in its quest for power.
I appreciate your attention to this matter and any legislative
assistance you can provide.
Aside from libelous content regarding UKB leaders and their governance,
this statement was laughable. The 1990 U. S. Decennial Census proves that
the constituency of CNO is scattered across the nation, with concentrations
of 14% of the total registered population in California, 10% in New Mexico,
and the cumulative majority living outside the 1906 boundaries of Cherokee
Nation. The UKB "quest for power" actually is, and was, an effort to stem
the erosion of UKB sovereignty available to every tribe in the country
except the UKB. Another Mankiller lobbying draft letter read:
I am concerned about ongoing attacks by the United Keetoowah Band
on the Cherokee Nation's right to govern.
The UKB claims that the Cherokee Nation ceased to exist at
Statehood -- that the Cherokee Nation does not exist today. Any school
child knows this is a ridiculous claim. The Cherokee Nation has had a
government-to-government relationship with the U. S. government since
its first treaty in 1785. It was the Cherokee Nations that revived
itself in Indian Territory after the Removal. Cherokee Chiefs
continued to act on behalf of the Cherokee Nation long after statehood
and in the 1940s Chief J. B. Milam appointed an executive committee.
Community representatives worked through the 1950s and 1960s. The U.
S. Claims Commission recognized a Cherokee Nation claim in 1961; the
Supreme Court recognized Cherokee Nation ownership of the Arkansas
River in the early 1970s. How can it be that the Cherokee Nation
doesn't exist?
The UKB was only chartered in 1950 as a business development
corporation. As a tribal member descended from those who endured the
Trail of Tears, I resent any implication that the UKB predates the
Cherokee Nation. As a resident of northeastern Oklahoma, I resent any
attacks on the Cherokee Nation as a major part of our economy.
This highly emotional, superficially historical statement fails to inform
because it scrawls in broad strokes. The historical record proves that the
UKB was not chartered in 1950 to be a development corporation, and CNO
knows this, but ignores the various determinations of Congress, the courts
and the Department of the Interior that contradict CNO's position. The
purposes of the Indian Reorganization Act and the OIWA included not only
assuring the "industrial progress" of tribes, but the protection and
enhancement of their sovereignty. CNO has declined voluntarily to avail
itself of the advantages of OIWA and IRA reorganization. The UKB grants the
CNO's continuous existence as the successor to the 6 September 1839 entity
called Cherokee Nation, as the 1906 Act stipulates.
However, the UKB bases its statement of existence predating the
currently constituted CNO government on the sequential dates of the organic
documents of the UKB and the modern CNO, 1950 and 1976, respectively.
Article XVI of the Cherokee Nation Constitution claims that the 1975 CNO
Constitution supersedes the 6 September 1839 Constitution. CNO, however, is
only endowed with the severely circumscribed sovereign authority of the
1906 Cherokee Nation, to the extent that the sovereignty of the 1906 tribe
was restored prior to the creation of the 1976 Constitution, which did not
include dominion over the UKB. The 1976 Constitution created no new powers,
particularly no new dominion over the UKB. CNO can exist as a tribe for
some purposes, but it is not a tribe for the purposes of OIWA and IRA.
In another model letter to the Oklahoma congressional delegation,
Mankiller advised employees to state:
As a Cherokee Tribal member, I am deeply concerned by the United
Keetoowah Band efforts to separate from and/or replace the Cherokee
Nation as the responsible government and service administrator for
114,000 tribal members.
Estimates of the UKB membership have varied from 96 to 3,000
although no more than 300 have ever voted in a UKB election and only
179 voted in the Nov. 5, 1990 election. That election was run under
highly questionable circumstances which are under review. In addition,
business activities and relationships of the UKB leadership are also
highly suspect. No financial records are made public, membership lists
are in disarray, and there appears to be no attempt to govern or
manage responsibly.
Once, when the UKB received its charter in 1950, the organization
represented the Cherokee fullblood. That hasn't been true for many
years and now the UKB even allows membership to people who cannot
prove their Indian heritage.
The UKB must not be allowed to proceed in its claims against the
Cherokee Nation. . . .
First, the UKB has stood separate from CNO since 1946 as a matter of law.
In the last full paragraph, Mankiller accidentally admitted this. Secondly,
CNO has claimed between 40,000, 114,000, and 140,000 members since 1975,
and according to its latest claims, fewer than 2% of these are one-quarter
or more degree Indian blood, as determined by Dawes descendency, including
the Absentee Shawnee and Delaware adoptees. The UKB has had no desire to
"replace" CNO as "the responsible government and service administrator"
except as to UKB members, to most of whom CNO consistently denies contract
services.
CNO's estimates of UKB's membership have significance primarily for
CNO. CNO is able to claim large turnouts for elections primarily because,
unlike the UKB, CNO allows absentee balloting. The UKB requires voters to
establish residency and provide current updated information. Also, lacking
Federal funding to run tribal elections, and lacking other income primarily
due to the aggressive efforts of CNO to prevent the UKB from succeeding in
economic development or fundraising, the UKB has experienced difficulty in
advertising elections. All fundraising or economic development efforts of
the UKB are "highly suspect" to CNO, just as tribal economic development is
"highly suspect" to most states and private sector competitors.
However, while CNO has had the opportunity to run its businesses with
hearty injections of Federal funding, it has had numerous problems in
maintaining a clean business record. The Indian Housing scandals of the
Keeler Administration were a continuing problem requiring congressional
oversight hearings in the 1970s. The mismanagement of CNO Business Manager
B. Bob Stopp (with Jerry Thompson and J. D. Johnson, regarding the Skills
Center, and Tommy Holburd and Dale Catron, involving the housing contracts
for CNO in 1972-1973) presents a murky business record, indeed. The
appearance, if not the certainty of impropriety in terms of conflict of
interest is apparent in Chief Keeler's engaging in business with CNO while
Chief, as Chairman of the Jelanuno Trust. Keeler's prosecution and
conviction of violating Federal election laws are matters of record. In
August of 1985, just before hearings on his nomination for Assistant
Secretary for Indian Affairs, CNO Tribal Council was not unmindful of Ross
O. Swimmer's past as President of the First National Bank of Tahlequah; and
yet, the CNO Council passed an "emergency resolution" naming Swimmer's bank
as the primary depository for CNO trust accounts, and Principal Chief Wilma
Mankiller cheerfully signed off on it, with Treasurer Gary Chapman, who
became President of the bank after Swimmer. [U. S. Congress, Nomination of
Ross O. Swimmer to be Assistant Secretary, Indian Affairs, Interior
Department (Hearing to consider the nomination of Ross O. Swimmer
(President, First National Bank of Tahlequah, Okla; Principal Chief,
Cherokee Nation of Oklahoma) to be Assistant Secretary, Indian Affairs,
Interior Dept.) (Oct. 16, 1985). Includes a submitted statement (p.
97-112)]
Fully content with its own shady business dealings, CNO uses cutthroat
practices against perceived tribal competitors. Upon discovering the
efforts of UKB to acquire land in Arkansas and develop an economy there,
Mr. Chad Smith of CNO intervened and invited representatives of a local
government in Arkansas to his offices at CNO, and as a result of his
presentation (to which the UKB never has had any opportunity to respond)
the doors to UKB expansion into Arkansas have closed entirely. The UKB has
made regular financial reports at every UKB Council meeting, offers
accounting disclosures as the call arises.
Finally, the issue of UKB Rolls has received considerable attention,
above. The UKB exercises the same governmental authority respecting
adoption of future membership as any other federally-acknowledged tribe. As
to the accusation that the UKB adopts members indiscriminately, CNO's
history regarding membership makes this accusation laughable. Department of
the Interior findings regarding CNO's membership in the 1930s found that
the vast majority were less than 1/32 degree Indian blood; what can it be
now? CNO's objections stem in part from CNO's obligatory reliance on the
Dawes Roll to the exclusion of all other bases for registration. The UKB
relies on the Dawes Roll in addition to other sources, including the same
sources of evidence which states, counties, and other tribes use; Cherokee
Nation may only use these sources of information to verify Dawes
descendency. CNO reportedly purged its rolls some years ago to remove
persons whose Dawes descendency was suspect, but published verification is
available showing that Cherokee Nation provided membership credentials in
the 1970s based on marriage to Dawes descendants, or because their names
appeared on the Cherokee Nation News, Cherokee Voices, or Cherokee Nation
Advocate subscription lists. In the 1980s, when a Cherokee County newspaper
ran an editorial cartoon contest, the winner showed President Ronald Reagan
proudly displaying a card, and chortling, "I've got my very own Cherokee C.
D. I. B.!"
Several weekend and evening raids on UKB offices by persons unknown
during the 1980s involved damage to, and in some cases, theft of membership
information. The UKB has attempted to recover by putting all records
relating to membership under lock and key, and vigorously proceeding with
their open enrollment program to enforce an exclusive affiliation
ordinance. That Mankiller would make specific allegations about the
conditions of UKB membership records is most interesting, and some find it
extremely suspicious. Mankiller would do well to avoid accusations that
raise questions whether CNO may have specific information about the various
break-ins and raids on the UKB Enrollment Office. With these memos as their
model, the staff of CNO -- doubtless encouraged to write during regular
work hours with Federally-funded stationary -- administered generous
amounts of constituent snake oil to Congress over the next few weeks.
The testimony at the appropriations hearings on 11 April 1991
discloses the failure of the BIA and Congress to consider the history of
the 1936 Act and the 1946 Act with any care, relying instead on CNO's
briefing materials, and the model letters Principal Chief Mankiller
provided her Staff and friends. Congressman Aucoin read from a series of
questions by Congressman Synar:
The first question: the Congress enacted the Oklahoma Indian Welfare
Act in 1936 to facilitate the recovery of the Oklahoma Indian tribes
such as the Cherokee Nation. In 1946, when the Congress enacted
legislation to allow Cherokee Indians associated with the Keetoowah
society to organize under the Oklahoma Indian Welfare Act, section 3,
proponents thought that the act was only a means to provide for the
protection and recovery of Cherokee tradition and culture. Now that
the Cherokee Nation has accomplished that and more, as an effective
and potent tribal government, and repeatedly has been recognized by
the Congress, the courts, and the Executive of the Cherokee people,
isn't the purpose of the 1946 act obviated and the funding for the
United Keetoowah Band unnecessary?
The hearing record noted several outbursts of general hilarity, always at
the UKB's expense, as if this event had to be one of the best running
inside jokes on the Hill:
Mr. Brown. Let me refer to Mr. Eden in regard to that. Ron, do you
have any specifics for that question at this point? [Laughter.]
Mr. Eden. Thank you. The --
Mr. AuCoin. Why do you always get these questions? [Laughter.]
Mr. Eden. Good Question.
Mr. AuCoin. What about that, though? Mr. Synar seems to think that
there's been recognition by the Congress, by the courts, by the
Executive as to the government of the Cherokee people. So why isn't
the purpose of the 1946 Act obviated and the funding for the United
Keetoowah Band (UKB) unnecessary?
Mr. Eden. Mr. Chairman, that particular action was one that was taken
by the Congress. Of course it did become public law. You're asking for
a judgment call as to whether we think that the Congress ought to
amend the law or not, and I'm not prepared to suggest that Congress
should. The law is in place. The United Keetoowah Band was recognized
as a tribe, and it has not been an issue heretofore. It's only been
within the past couple of years that that has become a problem for
various and sundry people, and certainly for the Cherokee themselves.
Mr. AuCoin. And for Mr. Synar apparently.
Mr. Eden. Yes.
Mr. Aucoin. So you take the position that this is a separate nation
and not a part of the greater Cherokee Nation; is that correct?
Mr. Eden. That is correct.
The Secretary of the Department of the Interior cannot terminate or
redetermine a previously acknowledged Federal-tribal relationship unless it
can show by "clear, cogent and convincing evidence" that either: (1)
Congress expressly intended to abrogate the relationship with the tribe, or
(2) the tribe has voluntarily and knowingly abandoned its status as a
tribe. Kansas Indians v. U. S., 72 U.S. 737 (1867). The intent of the 1936
Act (OIWA) was not to allow Cherokee Nation of 1906, in particular, to
reorganize, as a Department decision of 1937 reaffirmed [MEMO TO INDIAN
ORGANIZATION, 25 October 1937, from Director of Lands (WDW) to Daiker,
Indian Organization (enclosure 1310901) responding to Daiker's request for
information regarding rights of various classes of Cherokee citizens to
vote on the adoption of a Constitution and By-laws by those tribes under
the jurisdiction of the Five Civilized Tribes Agency (163618)] Records
relating to Indian Organization in the National Archives attest that in
1934, the Department found Cherokee Nation incapable of reorganizing the
1906 Cherokee tribal government, part due to the voluntary abandonment of
tribal relations of most of its members, while the Keetoowah Indians or
Band were capable of reorganizing, and willing to do so. CNO argues that it
has the same rights under OIWA and IRA as Muscogee Creek Nation under the
1972 and 1978 Harjo decisions. The 1937 Land Division opinion is still in
effect regarding the authority of the old Cherokee Nation to reorganize
under OIWA. Under the 1988 determination, although the Cherokee
Constitution of 6 September 1839 expired in 1906, and though the CNO in its
present form is the successor of the 1906 Cherokee Nation government, the
CNO never has availed itself of any right it might have to reorganize a
tribal government under the OIWA of 1936 and the IRA of 1934, and does not
constitute an OIWA/IRA government today! (Letter determination, 4 February
1988, Hazel E. Elbert, Acting Assistant Secretary of Interior for Indian
Affairs, to James G. Wilcoxen, Esq., Wilcoxen and Cate, Muskogee, Oklahoma.
Hazel Elbert reviewed the relationship between CNO and the old Cherokee
Nation)
Congressional and administrative proponents of the 1936 Act and the
1946 Act did not think of these laws as providing "only a means to provide
for the protection and recovery of Cherokee tradition and culture,"
although these goals were among the justifications for passage of OIWA and
IRA. The intent of the UKB in reorganizing was to function as an historic
tribe in every legal sense. Recall the finding of the Director of the BIA's
Office of Indian Services, Theodore Krenzke, in 1979:
In that the United Keetoowah Band organized pursuant to a federal law
(the Oklahoma Indian Welfare Act of 1936), it clearly has the status
of separate tribal entities. Included among the objectives of the
Band's Constitution is to provide for the exercise of governing
authorities.
Mr. Swimmer proposed Congressional action to revoke the Band's
Corporate Charter as a means of resolving the problem. The Band would
remain a separate entity, however, unless Congress took similar action
to abolish the Band's Constitution and By-laws.(Letter, 3 July 1979,
Director, Office of Indian Services, Central Office, to Senator Henry
Bellmon, re: status of the UKB)
Although courts, Congress, and the Executive have recognized the Cherokee
Nation of Oklahoma of 1975, the Eastern Band, and the UKB as three
governments of different populations Cherokee people, no Act of any branch
of the U. S. government since 1937 has purported to merge or terminate one
in favor of the other.
As for the recovery of the Cherokee Nation in the 1960s and 1970s, the
record proves that the cooperation and patronage of the UKB was essential
to the creation and success of Cherokee Nation, but that the UKB neither
surrendered by voluntary action, nor lost by congressional, judicial, or
administrative action, one iota of inherent sovereignty to the newly-
created Cherokee Nation of Oklahoma, created under the 2 October 1975 CNO
Constitution. The Canons of Construction of Indian treaties and legislation
make it very clear that Congress must show a "clear and plan" intention to
abrogate Indian treaties and agreements, creating a strong presumption that
these rights have not been abrogated, modified, or "obviated" by subsequent
congressional enactments. Either the Canons of Construction expressly
obviate Synar's conclusions regarding the status of the UKB, or CNO cannot
be assured that any of the actions of the Federal government since 1970 can
secure the future survival of CNO.(Felix Cohen, Handbook of Federal Indian
Law, Albuquerque: U.N.M. Press, 1982, pp. 222, 223) Article XVI of the 1975
CNO Constitution expressly overruled and superseded "the provisions of the
Cherokee Nation Constitution enacted the 6th day of September 1839." While
Cherokee Nation of Oklahoma is administratively condoned as a non-OIWA,
non-IRA tribe, it is not the same as the Cherokee Nation of old, of which
the Keetoowah Band once was a part. Congress never expressly waived the
requirement that the CNO reorganize under OIWA and IRA, as the UKB has
done, in order to qualify for programs and services, and so the CNO today
is an extension of the existing authority of the Principal Chief of
Cherokee Nation under the Act of 1906, as Congress and the Executive
branches have cultivated and enhanced that power, short of requiring the
CNO to reorganize as OIWA and IRA require.
Congressman AuCoin was not satisfied with the Department's answer, and
persisted:
Mr. AuCoin: Well, I don't know enough about this to argue with you,
but I guess Mr. Synar disagrees. Mr. Synar cares a lot about this. He
has submitted some background information -- tabbed. [Laughter.] On
page 3, it said--I'm quoting on page 3 of this report to the
committee: 'Most important, the legislative history nowhere indicated
any congressional intent to create the UKB as a substitute for the
existing Cherokee Nation or as a competing government in Cherokee
territory. Even after the UKB adopted a constitution and charter as a
corporation in 1950," Mr. Synar continues, "it never became active as
a tribal government."[U. S. Congress, House Interior and Insular
Affairs Committee Hearings on 101-116 on FY 1992 Interior
Appropriations, United Keetoowah Band of Cherokee Nation (11 April
1991)]
Notwithstanding acts of vandalism, accidents and loss of records, the UKB
maintains a considerable quantity of their original records, proving
continuing governmental activity since reorganization. Although in this
narrative does not contain an exhaustive study of UKB Tribal Council
proceedings, we have cited over 90 separate sets of UKB Tribal Council
meeting minutes dealing with a wide range of governmental functions and
activities spanning over 62 years of tribal activities. Congressman Synar's
statements lacked, and indeed, refused to provide any authentic basis for
his allegations. Congressman Synar never has extended any justice or
professional courtesy to his constituents among the UKB of allowing them to
review his alleged "evidence" against the UKB, but the UKB need only stick
with the facts, and on the CNO lobbying letters and eight "talking points"
discussed above.
This narrative has addressed in detail the claim that the UKB existed
only as a loan association under Section 4 of OIWA, partly because BIA
Muskogee Area Director actively obstructed efforts of the UKB to develop a
daughter organization that could participate in the revolving loan funds
available to Section 4 OIWA organizations. Further, the UKB attempted to
engage in industrial and political development, alone, and in cooperation
with and support of Cherokee Nation, to the ultimate detriment of the UKB.
Congressman Synar stated "the legislative history nowhere indicated
any congressional intent to create the UKB as a substitute for the existing
Cherokee Nation or as a competing government in Cherokee territory." The
Congressman, again, has entirely missed the point. The UKB did not need to
be a "substitute" government for the Keetoowah Indians, because at the time
of the 1946 Act, the Principal Chief of Cherokee Nation was acting entirely
as a presidential appointee. Cherokee Nation remained recognized, such as
it was, but there was no organized tribal government within the former
boundaries of Cherokee Nation with the UKB could compete, only an
administrator and a service population. The 1906 Act preserved the Cherokee
Nation of 1839, and as presently constituted, unreorganized under OIWA and
IRA, Cherokee Nation is no less, but no more, than it was in 1906.(Letter,
4 February 1988, Hazel E. Elbert, Acting Assistant Secretary of Interior
for Indian Affairs, to James G. Wilcoxen, Esq., Wilcoxen and Cate,
Muskogee, Oklahoma) The UKB coexists within the boundaries of the Cherokee
Reservation with the 1839 government, represented by the Principal Chief of
Cherokee Nation, and the descendency group which functions as a recognized
tribal government under the 1976 CNO Constitution, pending the
reorganization of the Cherokee Nation under OIWA and IRA. The UKB is a
government senior to the 1976 CNO organization, just as the Creek Tribal
Towns have been found to be senior to Muscogee Creek Nation, since their
OIWA/IRA organizations existed for decades before the Creek Nation
reorganized. The Creek Tribal Towns and Muscogee Nation coexist, even
though they have overlapping rolls and rely on the same base roll, and they
get separate funding. Congressman Synar should be asking why CNO demands
that the State of Oklahoma and fourteen northeastern counties coexist with
CNO, while CNO exhibits its inability to tolerate any other tribal
sovereign.
Mr. Synar's argument failed partly because he relied on the notion
that the 1975 CNO was the same as the 1839-1906 government of Cherokee
Nation, rather than successor. In a finding on the right of 1/4 blood
Cherokee Freedmen to benefit from a special Cherokee Nation burial fund,
dated 4 February 1988, Acting Assistant Secretary Hazel Elbert reviewed the
relationship between CNO and the old Cherokee Nation:
The United States Claims Court in Docket 262-83L granted an award to
the Cherokee Nation of Oklahoma to satisfy a claim against the United
States for the 1906 taking of "station reservations," tracts of tribal
lands set aside by railroads in what was then Indian Territory. The
subject tracts were reserved from allotment in Section 24 of the
Cherokee Agreement approved by the Act of July 1, 1901, 32 Stat. 716.
The Results of Research Report on the Cherokee Nation (Oklahoma)
judgment funds in Docket 262-83L found the Cherokee Nation of
Oklahoma, as presently constituted, to be the full successor to the
Cherokee Nation of the first decade of this century and the full
beneficiary of the judgment funds.(Letter determination, 4 February
1988, Hazel E. Elbert, Acting Assistant Secretary of Interior for
Indian Affairs, to James G. Wilcoxen, Esq., Wilcoxen and Cate,
Muskogee, Oklahoma)
This finding means that the CNO, as constituted in 1976 and 1988, was the
successor to the Cherokee Nation of the first decade of this century,
having no more power or property than Cherokee Nation had by 1976, when
Cherokee voters adopted a new Constitution. The question arises whether a
"full successor" is necessarily a "sole successor," in this instance.
Indeed, as indicated above, Congressman Synar's proposed legislation in
1992 and 1981 to settle the Arkansas Riverbed dispute reflects that other
entities, even those integrally a part of CNO, may have their own standing
to make tribal property claims. [H. R. 2329, 97th Cong., 1st Sess.,
"Conferring jurisdiction on certain courts of the United States to hear and
render judgment in connection with certain claims of the Cherokee Nation of
Oklahoma," by Congressman Mike Synar (D-2nd Dist., OK.)] The UKB does not
purport to be sole successor to the 1839 Cherokee Nation government, only
its remainderman as to the affairs and rights of the Keetoowah Cherokee
Indians, which became distinct after 1937. In 1958, the Department of the
Interior concluded, regarding the IRA constitutions and OIWA charters of
Oklahoma tribes:
These . . . differ in several respects from those adopted by tribes of
other states. For one thing, the substantive powers of the tribe are
set forth in the charters, rather than in constitutions. The
constitutions are restricted to such topics as membership and tribal
organization. Another important characteristic of the Oklahoma tribal
constitutions and charters is that none of them contain the broad
police and judicial powers found in many other tribal documents. This
lack may be ascribed to legislation . . . depriving tribal courts in
the Indian Territory of all power, and to the practical assumption by
the State of Oklahoma of responsibilities which are elsewhere divided
between Federal and tribal authorities. [U. S. Department of the
Interior, Fred A. Seaton, Secretary, and Solicitor Elmer F. Bennett,
Federal Indian Law (Washington, D. C.: U. S. G. P. O., 1958)
The UKB has a far better record of political continuity under the 1950
Charter, Constitution and By-laws than Cherokee Nation did between 1906 and
1975, when the new Cherokee Nation of Oklahoma's 2 October 1947
Constitution purported to supersede the 6 September 1839 Constitution. The
1975 Cherokee Nation of Oklahoma Constitution was not the vehicle for CNO's
reorganization under OIWA and IRA, and did not conform to the model for
OIWA reorganization in any practical aspect. For example, the 1975
Constitution ignores the OIWA requirement of setting out powers primarily
in the Charter, following the Secretary's approval of a Constitution which
sets out organizational matters and membership policy. Cherokee Nation
would have to go back to the drawing board, redraft an appropriate
Constitution, as the Secretary to approve a Charter, and convene Federal
elections to approve these organic documents, in order to reorganize under
OIWA and IRA.(Cherokee Nation of Oklahoma Constitution, CNCA, 1976)
OIWA and IRA have not been rescinded for any other Oklahoma Indian
tribe, and no other Oklahoma Indian tribe has received any special
dispensation allowing the subject tribe to evade the responsibilities of
OIWA and IRA, while assuring the benefits of reorganization under OIWA and
IRA to that same tribe. The whole point of tribal existence as a "dependent
domestic nation" is to retain a degree of autonomous existence. It is
interesting that Article I CNCA, "Federal Regulations," stipulates that the
CNO is "an inseparable part of the Federal Union;" and the same article
forbids CNO from enacting any law "in conflict with Federal law"(Cherokee
Nation of Oklahoma Constitution, CNCA, 1976) States, and local units of
non-Indian government, are inseparable parts of the Union. By the terms of
the 1975 CNCA, Cherokee Nation of Oklahoma derives its sovereignty from the
United States, not the inherent sovereignty of the Cherokee Tribe or
Nation.
In delivering the coup de gras to the BIA's funding proposal for the
UKB, Congressman AuCoin returned to the question "Why isn't the purpose of
the 1946 Act such that funding is unnecessary for the United Keetoowah
Band?" Mr. Eden indicated a BIA budget proposal included a $100,000 set-
aside for the UKB, due to Dr. Eddie Frank Brown's formal rescission of the
1980 Gerard Policy, which had barred funding for both the Creek Tribal
Towns and the UKB.(Appeal of August 24, 1989, letter re Creek Tribal Towns,
30 November 1989, a memorandum from Dr. Eddie Frank Brown to the Muskogee
Area Director; see also Memorandum, 23 March 1981, Scott Keep, Associate
Solicitor, Tribal Government and Alaska, Division of Indian Affairs,
Department of the Interior to the Commissioner of Indian Affairs)
Congressman Les Aucoin proceeded with his questioning of Mr. Eden (Note:
please observe carefully the dates in the following quote):
Just one second, Mr. Eden. In 1980, looking at Mr. Synar's background
information, he says on page 4 of his background paper that, "In 1980,
upon reviewing a funding request from the UKB, the Department of the
Interior issued the following policy." This is not the full quote but
the conclusion of the quote:
There is no justification for contracts and/or grants with
UKB to provide the same services to those portions of the
Cherokee Nation which would be served under the Nation's
contracts and/or grants. The only funding the BIA issued was a
1984 grant of $70,000 to help the UKB establish a tribal roll and
identify its unique service population. To date, however, the BIA
has concluded that the UKB has failed to accomplish either task.
What about that?
Mr. Eden. Correct.
Mr. AuCoin. Those are the Department's own words in 1980.
Mr. Eden. Well, that is the policy that we're talking about as a
result of the membership of the Cherokee Nation and the Keetoowah Band
having the same enrollment criteria and traced to the same base roll.
That was the reason that essentially the Gerard policy was put in
place.
Mr. AuCoin. Why did you change the policy then?
Mr. Eden. Well, we started out changing the policy because of another
tribal issue; namely, that the Creek towns did not want to continue
receiving their services from the Creek Nation.[U. S. Congress, House
Interior and Insular Affairs Committee Hearings on 101-116 on FY 1992
Interior Appropriations, United Keetoowah Band of Cherokee Nation (11
April 1991); emphasis added]
It does not take a Rhodes Scholar to see that the alleged BIA report Synar
cited could not have been the conclusion of any 1980 "determination" by the
Department of the Interior on the UKB's ability to provide satisfactory
performance on the 1984 P. L. 93-638 grant. The quote it alludes to a 1984
Self-Determination grant. The finding that the UKB "failed to accomplish
either task" is certainly erroneous, in that the purpose of the grant was
not to "identify its unique service population," but was, as the grant
letter said, and as the BIA Muskogee Area Director agreed in 1990, to
update and verify the contents of individual members' files in order to
update the roll. The Synar briefing book, assembled largely out of unedited
and unverified materials CNO provided, obviously did not contain a copy of
the P. L. 93-638 contract aware letter to the UKB, because that document
stipulates to the purpose of the grant. Further, the grant was concluded
successfully when the UKB presented their Final Report and completed and
updated Roll to the Department in 1986.
Congressman Aucoin concluded with the final question:
[A]ssuming no enactment in 1946 or any other year allowing the UKB to
organize under section 3 of the Oklahoma Indian Welfare Act, would or
could the BIA recognize the UKB as a new tribe or band? Amplify that
for the record because obviously Mr. Synar believes that there may be
the need for a record to be laid and perhaps legislation to be
amended.[U. S. Congress, House Interior and Insular Affairs Committee
Hearings on 101-116 on FY 1992 Interior Appropriations, United
Keetoowah Band of Cherokee Nation (11 April 1991)]
The only item the BIA used to "amplify the record" was the Kirgis Opinion
of 1937; the Department found it inconvenient to cite Abe Fortas's finding
as Acting Secretary of the Interior, support the plan to allow all the
various factions of the Keetoowah Indians to reunite and reorganize as a
Band.(Senate Report 79 Cong., 2nd Sess., No. 978, 1946, Testimony of Acting
Secretary of Interior Abe Fortas; see also, House Report 79th Cong., 1st
Sess., No. 444, 1946 and House Report 79th Cong., 2nd Sess., No. 2705,
1946) The BIA and Congress failed to advert to the records of the
Organization Field Agents from 1937 to 1946 that proved the Keetoowah
Society, Inc., and its several factions, together composed only a fragment
of the Keetoowah Indians, and for that reason properly was denied the right
to reorganize apart from, or as the dominant organization for, the other
factions of the Keetoowah Indians in 1937. The legislative history of the
1946 Act, and the Act's implementation record, show that the various errant
Keetoowah factions did combine by 1950 to form the UKB, though until 1956,
at least one Keetoowah faction (Seven Clans Society) continued to pursue
separate reorganization. The BIA's course of dealing with the Keetoowah
Indians as a body, between 1937 and 1946, and the 1946 Act itself,
confirmed the Federal acknowledgment of the Band as an entity distinct from
any other.(Also see the first chapter, in which the author briefly reviewed
the history, social and political continuity and cohesiveness issues
regarding the UKB in terms of 25 C. F. R. 83)
The House Interior and Insular Affairs Committee Report 101-116 on
Interior Appropriations, p. 58, Indian Services (June 1991) concluded:
There is . . . a decrease of $100,000 for the United Keetoowah Band of
Cherokee Indians in Oklahoma. While a 1946 Act of Congress may have
permitted the United Keetoowah Band to organize as a band of Cherokees
within the Cherokee Nation, the Congress never intended to create a
duplicative or competing Cherokee tribal government, or to supplant
the Cherokee Nation's governance. Therefore, the Committee believes it
is inappropriate for the Federal Government to appropriate funds for
the United Keetoowah Band as long as the Cherokee Nation continues to
provide services to the members within its jurisdiction.
There is no objective evidence in the legislative record to prove that CNO
complies with its Federal contracts that require CNO service agencies to
serve UKB members on a non-discriminatory basis. On the contrary, there is
consistent and compelling evidence that UKB members who demand the right to
use their UKB credentials to prove eligibility for Cherokee Nation provider
are denied. Thus, through deceit and legislative logrolling, CNO easily
conned Congress and the Bush Administration into adding Amendment 86 to the
FY 1992 Interior Appropriations Bill, barring all UKB P. L. 93-638
contracting power and eligibility for land acquisition in northeastern
Oklahoma, agreeing to delete funding for the United Keetoowah Band of
Cherokee Indians in Oklahoma, providing further in the legislative history
that until such time as Congress enacts contrary legislation, Federal funds
should not be provided to any group other than the Cherokee Nation within
the jurisdictional area of the Cherokee Nation.
The Band sought aid at the Senate Appropriations Committee, but
Senator Nickles had worked with Secretary Lujan to intervene with Senator
Boren. As a new member of the Senate Select Committee on Indian Affairs,
Nickles had offered the amendment to stop the UKB's funding. Nickles
announced that he might hold hearings in Tahlequah to decide whether the
UKB was a separate tribe entitled to separate funding.(Muskogee Phoenix, 25
July 1991) The result was technically deficient language in the
Appropriations Act, which nonetheless represents the legislative
termination of the first tribe since 1962:
. . . until such time as legislation is enacted to the contrary, none
of the funds appropriated in this or any other Act for the benefit of
Indians residing within the jurisdictional service area of the
Cherokee Nation of Oklahoma shall be expended by other than the
Cherokee Nation, nor shall any funds be used to take land into trust
within the boundaries of the original Cherokee territory in Oklahoma
without the consent of the Cherokee Nation.(House Congressional Record
8083, 17 October 1991)
The language of the latter Amendment was so clumsy that the BIA had to
refer to the legislative history in order to interpret it as applying
solely to the UKB. The legislative history of Amendment 86 would be comical
if it concerned a trivial matter.
The UKB had no notice from congressional staff or the BIA that the
matter was on the agenda for the House Hearings on Appropriations for the
Department of the Interior - BIA. Congress allowed the UKB no opportunity
to respond to allegations that Associate Solicitor Kirgis's 1937 Opinion
denied the UKB, as distinguished from the Keetoowah Society, Inc., the
right to organize under OIWA and IRA. No one in Congress has flagged the
errors in the record in over two years. This is the first published
statement describing the obvious errors in the record.
The UKB Council passed a resolution on 4 May 1991, to accommodate all
concerned by asking to have land in trust outside the boundaries of the Old
Cherokee Nation.(UKB Resolution UKB 91-04-03, 4 May 1991) They offered to
expand well beyond the Eastern Band's reservation boundaries, preferably in
the Ozarks in Arkansas due to the continued resistance of Cherokee Nation
of Oklahoma. They offered to abandon jurisdictional claims or land
acquisition rights in the 14 counties, future funding through the Muskogee
Area Office, all Cherokee Nation trust assets, and damages resulting from
the BIA's refusal to provide P. L. 93-638 funding in the past. This
Resolution, born of frustration and the realization that the UKB had to be
driven west to Oklahoma in the first place, was nascent many years ago.
After the Department of the Interior conceded the Band's right to expand
into Arkansas, Chief Mankiller and Oklahoma's congressional delegation
intervened in Arkansas to abort the effort.
If the Department has reservations about the application of 25 CFR
151.3(a) governing off-reservation land acquisitions, or the application of
25 CFR 151.8 governing taking land to put in trust within the boundaries of
the former Cherokee Nation - Reservation, the move should be satisfactory
for all concerned. Any objections of the State of Arkansas, of North
Carolina, Georgia, South Carolina or Tennessee, or of the Eastern Band of
Cherokee Indians in North Carolina, could easily be met under the
circumstances.
On 2 May 1991, adopting with no independent thought or investigation
the party line of CNO, Oklahoma senators Boren and Nickles cosigned a
letter alleging that evidence in their hands proved clearly and
convincingly the United Keetoowah Band never intended to reorganize as an
autonomous entity. The Oklahoma delegation's obdurate refusal to allow the
UKB to confront their accusers is excused, apparently, because they
represent CNO and work for lobbying firms like Payton, Boggs, and Blow.
They added that Congress never intended to create a "competing" entity
within the former boundaries of the old Cherokee Nation. These actions show
a meanspirited side of Oklahoma due process. To the date of this writing,
the Oklahoma delegation denies the United Keetoowah Band of Cherokee
Indians in Oklahoma any practical opportunity for rebuttal, even as a
courtesy. To this date, all members of the delegation have withheld any
documentation supporting their positions from the UKB, despite personal
assurances of congressional staff in direct meetings with the UKB
spokespersons that the materials would, and could, be provided; therefore,
the Band can only conclude that these representations to the Band were
outright lies that the Oklahoma delegation is too embarrassed to air in
public. The same members of Congress have opposed the efforts of the UKB to
seek recourse by relocating in another state, on the grounds that the move
would be "bad for Oklahoma." What is good for the Keetoowahs clearly
remains a matter of complete indifference. Incidentally, in a belated
moment of lucidity immediately preceding his retirement from the
Department, Acting Assistant Secretary Ronald Eden reiterated the
Department's determination that the UKB is an autonomous tribe organized
under OIWA and IRA and entitled to separate funding and land acquisition,
though not in Oklahoma, unless Congress rescinds Amendment 86.(Letter,
Acting Assistant Secretary Ronald Eden to Chief John Ross, UKB, 24 August
1992)
The Court's ruling in the UKB's suit against Secretary Lujan came down
on 31 May 1991, but the Band's attorney did not inform the Council until
October. Judge Thomas R. Brett ruled that the Band had failed to exhaust
administrative remedies at the BIA level, leaving the Court without subject
matter jurisdiction.(Leeds 1992: 247) The Band's interest in the Arkansas
Riverbed was not established, and the UKB had not intervened in the two
other suits that CNO had filed against the U. S. The CNO was an
indispensable party to any action regarding the 61,000 acres held in trust
for Cherokee Nation, but CNO was immune from suit. Brett had dismissed the
suit without prejudice.(United Keetoowah Band of Cherokee Indians v.
Secretary, No. 90-C-608-B (N.D. Okla., filed 16 July 1990; see also Order
Regarding Defendant's Motion to Dismiss, 31 May 1991; Leeds 1992: 250-251)
The UKB continues its attempts to resolve its intersovereign disputes and
trust violation claims in Federal court.
* * *
It is important to recall that the other recognized Cherokee Band, in
North Carolina, was unrecognized for many years. The U. S. Supreme Court
had determined that the Eastern Band of Cherokees had lost their tribal
status by voluntarily abandoning tribal relations, in refusing exercise
their option to migrate to Oklahoma [see (Eastern Band of Cherokee Indians
v. United States and Cherokee Nation, 117 U. S. 288 (1886), aff'g. 20 Ct.
Cl. 449 (1885)], the Eastern Band came to acquire status as an Indian tribe
as a matter of law, as the result of the Federal course of dealing and
treating with the group as a tribe.[Memo. Sol. I. D., March 6, 1937; and,
among other cases, United States v. Wright, 53 F.2d 300 (1931), cert.
denied 285 U.S. 539] The Seven Clans Society was denied the opportunity to
reorganize because, like the Keetoowah Society, Inc., it was only a faction
of the Band. Between 1946 and 1956, the Department offered the Seven Clans
Society the solution which Acting Solicitor Kirgis offered for the
Keetoowah Society, Inc., in his 1937 Opinion:
While I have come to the conclusion that the Keetoowah Society of
Cherokee Indians cannot be considered a band for organization
purposes, groups of its members might form a basis for cooperative
associations under section 4 of the Oklahoma act. However, this may
not satisfy the groups' wishes as any such association could not be
limited to members of the society, since associations formed under
that section must be open to all Indians residing within the district
in which the association is formed. Another solution which might be
considered as an administrative matter is the possibility of a society
or organized faction or group borrowing as a unit from a tribal,
cooperative or credit organization for such group enterprise as it
could successfully carry on. I see no legal objection to such an
arrangement.[U. S. Congress, House Interior and Insular Affairs
Committee Hearings on 101-116 on FY 1992 Interior Appropriations,
United Keetoowah Band of Cherokee Nation (11 April 1991)]
After nearly ten years of reorganization studies by Field Agents, Secretary
Fortas concluded that if the factions pulled together as much as possible
to form an effective coalition government, that united body would compose
a band or tribe of Indians eligible for reorganization within the meaning
of the OIWA and IRA, and that Congress should allow them to reorganize as
a tribe under OIWA and IRA. Ross O. Swimmer claimed in 1979 that the UKB
had availed itself of the Section 4 organizational alternative, as the only
one to which the UKB was entitled, although the record clearly shows the
Band reorganized under Section 3, comporting with congressional intent. The
Keetoowah Society, Inc., itself withered as its members joined the UKB, and
after 1950, the Keetoowah Society, Inc., eventually ceased to function
under its 20 September 1905 Federal corporate charter. Where several Indian
groups are considered a single tribe (as in the case of Cherokee Nation
under the 6 September 1839 Constitution, under the 1866 Treaty, as amended
through the 1876 Agreements with the Delawares and Shawnees), for political
and administrative purposes, Congress subsequently may assign tribal status
to a component group for specific purposes. That is what Congress did in
the case of the UKB. The Cherokee Nation of Oklahoma that organized outside
of OIWA and IRA under the 2 October 1975 Constitution could only
incorporate the units of the old Cherokee Nation remaining after the UKB
reorganized, including all non-Keetoowah Dawes enrollees and their
descendants, and such members of the UKB who cared to join Cherokee Nation
of Oklahoma.
Note that, like the UKB, the Eastern Band of Cherokee Indians of North
Carolina is not affected by the partial reorganization of the CNO, and yet
as in the case of the UKB, special congressional authorization was
necessary in order to recognize that Band. One important illustration of
the different directions the UKB has taken with respect to CNO is precisely
in the area of protecting cultural resources and traditions. The UKB joined
individual members of the Eastern Band of Cherokees in the action to
preserve the Little Tennessee Valley's cultural and sacred sites from
inundation by the Tellico Dam in Sequoyah v. Tennessee Valley Authority,
620 F.2d 1159 (6th Cir. 1980), cert. denied 449 U. S. 953 (1981). In that
case, despite the urgent efforts of the UKB and Eastern Band, the TVA Board
succeeded in arguing that the area lacked centrality to Cherokee religion,
relying on the Affidavit of Principal Chief Ross O. Swimmer. Swimmer, who
knew virtually nothing of the importance of this area to Cherokee
traditional religion, alleged that the Little Tennessee Valley was not an
area of religious significance to the Cherokee people. [Note: On 27
November 1979, Swimmer announced his candidacy for the U. S. Senate seat on
the Republican ticket that Senator Bellmon was about to vacate. Swimmer
expected to rely on the support of Senator Howard Baker (R.-Tennessee), a
prime sponsor of the Tellico Dam legislation.]
The inundation of the Tellico area resulted in the destruction of
ancient and modern Cherokee burials. While caucasian remains were
reinterred in neighboring cemeteries, the Cherokee remains (including those
of historical figures, such as the great war chief, Oconostata) went to
Frank McClung Museum in Knoxville, Tennessee. In support of the efforts of
the UKB and the Eastern Band members, the National Council of Churches of
Christ in the U. S. A., the American Baptist Churches in the U. S. A., the
United Presbyterian Church in the U. S. A., the American Civil Liberties
Union and the Center for Constitutional Rights wrote an amicus curae brief
before the Sixth Circuit Court of Appeals, to no avail. The 1,140 Cherokee
bodies were reburied in unflooded areas near Echota after 30 June 1981, and
on 29 November 1979, the TVA flooded the Little Tennessee Valley without
notice to the UKB or other interested parties. The UKB has continued to
champion protection of religious freedoms. The UKB supported passage of the
American Indian Religious Freedom Act Amendments in a resolution dated 6
December 1991, months before Cherokee Nation of Oklahoma Tribal Council
submitted a support resolution at the urging of Mr. Brad Keeler.
Nothing in the 1946 Act, OIWA or IRA subordinated the UKB to the CNO.
The BIA never has reversed the determination of the Land Division in 1937:
. . . The Oklahoma Welfare Act of June 6, 1936 (49 Stat. 1967) does
not repeal any of the provisions of the Act of April 25, 1906, which
authorized the continuation of the Cherokee Tribal Government.
It is not believed that the Oklahoma Welfare Act may be used as
authority to reorganize the existing tribal government of the Cherokee
Nation. On the contrary, the Act appears to contemplate the creation
of a new, separate and distinct organization, to adopt its own
constitution and bylaws and to procure a charter of incorporation
without regard to the existing government.
It is believed that the powers and jurisdiction of the new
organization should be limited to the property and other benefits to
be acquired under the Act. Those persons whose names are one the final
rolls of the Cherokee Nation have certain rights in the remaining
assets of the tribe, and if any attempt were made to deny them the
right to vote on matters which may affect such rights, it would
doubtless give rise to litigation.[(MEMO TO INDIAN ORGANIZATION, 25
October 1937, from Director of Lands (WDW) to Daiker, Indian
Organization (163618); emphasis added; reaffirmed, Letter
determination, 4 February 1988, Hazel E. Elbert, Acting Assistant
Secretary of Interior for Indian Affairs, to James G. Wilcoxen, Esq.,
Wilcoxen and Cate, Muskogee, Oklahoma]
Ignoring all these historical facts, on 23 July 1991, Principal Chief Wilma
Mankiller wrote to Principal Chief Jonathan L. Taylor telling him that
members of the UKB serve on the CNO Tribal Council, and were on the CNO
payroll. Mankiller dealt in half-truths and misrepresentations in the
Taylor letter. It is worthwhile to deal with these accusations in sequence.
In northeastern Oklahoma, one of the few employers of Indians is CNO,
and needing work, some UKB members have been able to obtain employment with
CNO; but the alternative is for Mankiller to admit that CNO consciously and
systematically violates its government contracts by denying jobs and
services to Keetoowahs, and that of course would not do. Further, as part
of her overall strategy of classifying the UKB as one of a number of
Keetoowah factions of Cherokees and Creeks, Mankiller fails to distinguish
between members of the UKB, the Nighthawks, the Four Mothers Nation, and
the Seven Clans Society. It is unlikely she understands the distinctions.
Leaders of the latter groups certainly work for CNO, so it is hardly
surprising that they gave letters of support for Cherokee Nation, in
response to Mankiller's 28 January 1991 solicitation; after all, team
players keep their jobs around CNO. In touting letters of support for CNO
from Four Mothers and other opposition Keetoowah groups, Mankiller ignored
the history of UKB reorganization in the 1940s, in which the leaders of
Keetoowah factions struggled relentlessly and unsuccessfully to take over
the organization of the UKB. Now, decades later, the heirs to those groups,
denied separate organization under OIWA and IRA, refuse to accept the
option of reorganizing under Section 4 of OIWA, and refuse to accept
organizational charters from the UKB. Mankiller made the quantum leap of
claiming that because these Keetoowah factions that hold old grudges
against UKB have decided to support her government, that the general UKB
membership opposes the UKB government. If Mankiller's claims were
plausible, thirty percent of the UKB members would have called for an
election years ago to amend the UKB Charter, Section 8, revoking the
Charter, and to revoke the Constitution, or alternatively, the members
would have demanded a referendum giving Mankiller a blanket concurring
resolution supporting any program proposals CNO wants. These things never
have happened. The "Reformed Keetoowah" party, consisting of UKB members
like Chad Smith who make a living at CNO opposing the UKB, remain a
minority, frustrated and incapable of steering the UKB into line with CNO.
Incidentally, Chad Smith and his late father, as well as other members of
their family, were found to have incomplete or unverifiable files in 1986,
but were not removed from the UKB Roll, because the Council did not want to
deprive members of their property rights.
Woodrow Proctor, who turned against the UKB and his own father after
losing an election campaign some years ago, successfully ran for a position
on the CNO Council. CNO Councilman Sam Ed Bush is a member of the Nighthawk
Keetoowahs, not the UKB. No other member of the CNO Council is a current
enrolled member of the UKB, and as the UKB enforces its prohibition against
dual affiliation, none can be. Without citing any source or rational basis
for her statement, Mankiller alleged that the majority of UKB members "do
not support the efforts of the United Keetoowah Band to form a separate
tribe." Mankiller knowingly lied in stating that the UKB was attempting to
form a separate tribe. Lying again, she argued that the UKB would lose
nothing if "they are not fully recognized by the United States Government;"
since the UKB already was recognized, they stood to lose everything through
termination. Members of the UKB prefer belonging to a tribe acknowledged
and organized under OIWA and IRA, rather than the jerry-rigged 1976
government of the CNO.
Mankiller declared:
It is a lie that there is an on-going attempt to terminate the United
Keetoowah Band. I was just in Washington this past week and no such
action is pending. The United Keetoowah Band is spreading this
information because they are trying to generate from other tribes and
the only thing that will raise alarm among other tribes is talk of
termination. They are masters at providing misinformation.(Letter, 23
July 1991, Principal Chief Mankiller to Chief Johnathan L. Taylor)
It is easy to dispose of this statement. In the first place, the UKB have
become masters at quoting Chief Mankiller with her foot in her mouth. The
attentive reader will recall Ross O. Swimmer's Letter, 27 April 1979, to
Senator Henry Bellmon, requesting that Congress move immediately to
exercise its authority under Section 8 of the UKB Charter to terminate the
Band. The reader will recall Director, Office of Indian Services, Central
Office Theodore Krenzke's Letter of 3 July 1979, to Senator Henry Bellmon,
indicating that Congress would need to revoke both the Charter and the
Constitution to terminate the UKB. The Department advised the UKB Tribal
Council in 1980 that Swimmer was actively pursuing the termination of the
UKB. Recall the United Keetoowah Band - Cherokee Nation Memorandum of 30
October 1990, from Dr. Eddie Frank Brown to the Solicitor of the Department
of the Interior, concluding, "the United Keetoowah Band has been recognized
as a tribe since 1950, and we do not want to withdraw that recognition.
Absent Congressional action, we do not have the authority to do so,"
referring directly to the efforts of CNO to enlist the BIA in efforts to
terminate the UKB legislatively. Recall the recommendations, dated 6
December 1990, of Joseph Membrino, Esq., to Dr. Eddie Frank Brown, that the
UKB should be allowed no separate Federal funding from any source, no trust
land acquisition inside or outside Oklahoma, concluding:
The Department should unequivocally announce that the UKB is
subordinate to the Cherokee Nation in the area of the original
Cherokee reservation, and that nothing in the 1946 Act or the OIWA
qualified or eliminated the superior authority of the Cherokee Nation.
Mr. Membrino, CNO's lobbyist in negotiations with Assistant Secretary Brown
in November 1990, was one of Chief Mankiller's employees, and presumably
represented Mankiller's views. Mankiller declared that the UKB had no
"accepted roll." The UKB has a roll, but one that the CNO does not accept.
Conversely, the UKB does not accept that the CNO registration list
constitutes a tribal roll at Federal Indian law, citing the San Juan
Southern Paiute case. Mankiller admitted:
Deputy Chief John Ketcher and I, as well as members of the Tribal
Council have been fighting, along with the Oklahoma delegation, to
keep the Bureau of Indian Affairs from funding this group. If the
United Keetoowah Band wants to become fully funded and federally
recognized, they should go through the federal acknowledgment
process.(Emphasis added)
Mankiller's final statements show CNO's new agenda, since the outright
termination of the UKB seemed difficult to attain:
Based solely on your recommendation, the Cherokee Nation has
consistently taken the position that the people trying to get federal
recognition as the Lumbee Tribe should go through the federal
acknowledgment process. There are no Lumbees around here and we are
not familiar with the issue but have taken our position based on your
recommendation. I would urge you to take the same position with the
UKB. Make them go through the acknowledgment process, require their
members to have a CDIB, require them to drop the non-Indian members
and tell them to organize somewhere outside the jurisdiction of
Cherokee Nation. If you are not careful, they will be in your back
yard. I saw one UKB proposed settlement offer in which they planned to
go back to the East and organize there.
The UKB is federally acknowledged. The attempt to declare a recognized
tribe unrecognized by terminating the federal-tribal relationship
constitutes termination. CNO blackmailed the Eastern Band by obliquely
threatening to publicly support the recognition of the Lumbee Tribe of
Cheraw Indians. When the Eastern Band of Cherokee's religious leaders
sought support in fighting the completion of the Tellico Dam, it was the
UKB that ran to their aid, while Chief Swimmer ran for a Senate seat in
Oklahoma, partly on his support for the Dam. Chief Taylor forgot all this,
except for the political clout of Cherokee Nation, and the need to have
Cherokee Nation's support in order to prevent the acknowledgment of the
Lumbee Tribe of Cheraw Indians. Chief Taylor vetoed his Council's
Resolution supporting the UKB, and in taking no action, assumed a "neutral"
position regarding the UKB's status.
In fall of 1991, Mankiller contacted Chief Ross for a meeting, because
Senator Nickles had scheduled a hearing for the Senate Select Committee on
Indian Affairs in Tahlequah for the spring of 1992, and she hoped to
obviate the need for the hearing. She prepared a statement for Senator
Nickles for Chief Ross to sign, and when he declined, she sent her own
letter, declaring that his would follow expressing the same views.(Letter,
14 November 1991, Principal Chief Wilma P. Mankiller to Senator Don
Nickles) Rejoicing that the 1992 appropriation legislation had passed with
Amendment 86 riding it, Mankiller crowed, "This is not the first step in
repealing the UKB recognition." Indeed, CNO already had taken a number of
other steps already to terminate the Band.(Cherokee Advocate, December,
1991) Caught with her foot in her mouth, Mankiller claimed she had been
misquoted or misinterpreted, and claimed her meetings with Ross were
showing signs of success. To the date of this writing, those signs are all
in favor of CNO.
At San Francisco, on 2 December 1991, National Congress of American
Indians held its annual convention, at which Wilma Mankiller was a featured
participant. She and the CNO delegation were able to exert a great deal of
control over tribal representatives' credentials by making sure employees
of CNO staffed the table. While Chief Mankiller was observed around the
Convention "schmoozing" freely with the unacknowledged and state
acknowledged Cherokee tribal groups from the various states, and though
none of those groups had problems with credentials as long as their papers
were in order, Mankiller did everything possible to prevent the UKB
delegates from receiving their credentials, by challenging the status of
the UKB. Eventually, when the UKB delegates offered to carry the issue to
the floor of the Convention through supportive delegations, the
Parliamentarian intervened to indicate how inappropriate the attack was.
Finally, with some chagrin, Mankiller herself visited the credentials room
and directed her employees to move the credentials through. Thereafter, it
appears, Mankiller realized that in order to eliminate the UKB, all other
Cherokee groups would have to be subjected to the same tactics, so that the
effect would be to tar the UKB with the same brush, and eliminate the issue
summarily. However, CNO never had the unmitigated gall to attack the UKB's
credentials in public forums again, except in correspondence.
To curry favor with certain members of Congress who (justly) support
Lumbee recognition, Chief Mankiller and former Chief Swimmer adopted a
neutral position on the Lumbee acknowledgment bill in 1992. On 11 August
1992, the Cherokee Nation and the Eastern Band of Cherokee Indians, in
joint council, passed a resolution to protect the use of the Cherokee name.
Omitting the UKB altogether, the two tribes have formed a cartel good for
propaganda purposes but having no other legal effect. It is amusing that
the CNO and Eastern Band have condoned Cherokee Shoes and the Jeep Cherokee
to do business unmolested for years. There is absolutely no doubt that the
target of all this hostility of non-federally recognized groups, but the
UKB, precisely because, despite all the efforts of Wilma Mankiller and John
Ed Taylor, the UKB remains recognized.
In December 1992, Chadwick Smith, now attorney for the Nighthawk
Keetoowahs, filed an amicus brief in the Sonny Buzzard v. Oklahoma Tax
Commission case on appeal, in the 10th Circ. Ct. of App. Smith filed
because the Nighthawks objected that the UKB "is confusing the public by
claiming a relationship to the traditional Keetoowah Society."("Keetoowah
Society files brief in UKB smokeshop case," Cherokee Advocate, December
1992) It is no accident that Smith's claim coincided with the formation of
Chief Mankiller's plan to form a joint resolution with the Eastern Band
Tribal Council to claim a monopoly on the name Cherokee, and to anoint
themselves the sole federally-recognized Cherokee tribal entities.
The Nighthawks' behavior is particularly odd, because to involve
themselves in such a controversy was a political act, and the Nighthawks'
own written law forbids political activity. The originators of the notion
that the UKB "is confusing the public by claiming a relationship to the
traditional Keetoowah Society" were Chadwick Smith and the Nighthawks, and
apparently they undertook this disinformation campaign no earlier than
1990. The reader may confirm this with the attached bibliography, the
minutes and other records of the UKB, official publications of the UKB, and
the published literature. According to Smith, "the Keetoowah Society sought
to defend its name and reputation as the true keeper of the traditional
Cherokee values and traditions:"
In February, 1991, William Lee Smith, chief of the Keetoowah Society,
wrote, "We do not foster division among our people or the outside
world. Certainly, we do not approve of using the Keetoowah name for
commercial activities, bingo or smoke shops. We are the keepers of the
tradition, culture, language and spirit of the Cherokee Indians.
As it was before the Trail of Tears and as it is today, there is
only one government for the Cherokee tribe and that is the Cherokee
Nation. The United Keetoowah Band and the Keetoowah Society have never
been governments of the Cherokee people.
The United Keetoowah Band should remove the Keetoowah name from
its organization. I have also told leaders of that organization that
the division they promote among the Cherokee people is not in keeping
with Keetoowah ways and is just wrong.
William Lee Smith's grandfather and great-uncles created the first schism
in the Keetoowah organization movement, and are not the secular or
religious successors to the Keetoowah Society or the Keetoowah Society,
Inc. The UKB is. It is no coincidence that William Lee Smith's brother
Crosslin, a former planner and outreach officer for CNO brought in to keep
fullbloods in line during Keeler's administration, is the heir-apparent to
the office of Nighthawk Chief, and has touted himself as CNO's resident
Medicine Man, while Chad Smith has been a loyal high-ranking employee of
CNO for nearly twenty years.
Mankiller declared in a Letter of 26 January 1993 to governors in most
of the eastern states that the UKB was an unrecognized tribe petitioning
for recognition. In a public explanation of the letter in July 1993,
Mankiller and her Registrar, Lee Fleming evaded all direct references to
the UKB, and in doing so, evaded all responsibility for the libel they had
perpetrated against the UKB.(85, 86, 87: I) Although their "explanations"
for their conduct offered plausible deniability, the simple truth is the
January 1993 Mankiller letter was written to lump the UKB with the numerous
Cherokee-named groups pursuing Federal acknowledgment; whether that was
only one of her purposes is entirely irrelevant.
Claiming state recognition of tribes is unconstitutional,(87: I)
Mankiller praises the administrative process prescribed at 25 C. F. R. 83
highly because it supposedly watchdogs the acknowledgment of tribes with
the blessings of Congress. That process specifically requires tribes to
show forms of State recognition, formal or otherwise, in meeting the tests
of 25 C. F. R. 83.y (a) - (g).(87: I) Where Congress has authorized or by
practice has condoned the actions of a State in recognizing and cooperating
with these constituents and citizens, it is questionable whether, as
Mankiller suggests, any State violates the Indian Non-Intercourse Act by
acknowledging a tribe. Indeed, in all probability, it is extremely doubtful
whether the Eastern Band of Cherokee Indians of North Carolina would be
recognized today had the State of North Carolina refused to extend them
statutory recognition. Further, Self-Determination policy encourages tribes
to conduct direct relationships with other sovereigns. The State of New
Mexico accords full faith and credit to decisions of tribal courts in that
states, and though that violates the U. S. Constitution in theory, the
practice continues with U. S. condonation.
Chief Mankiller knows well that to cut off every alternative route to
survival is termination. Mankiller uses that knowledge against the UKB with
a vengeance. The problem with CNO and Eastern Band is they genuinely
believe and gracelessly demand special dispensations extended to no other
tribe, yet are eager to eviscerate any potential perceived competitor,
regardless of the rules. CNO has no blood quantum requirement for
"membership," while Eastern Band is in the process of dropping theirs to
under 1/16. CNO's population is scattered throughout the planet, and most
members today may never live to see Cherokee Nation. They speak of the
acknowledgment process as something all unrecognized tribes must pass, and
have deliberately lied about the status of the UKB, declaring themselves
the only "recognized" Cherokee tribes, in order to effect the practical
termination of the UKB, and many observers say that Amendment 86 was the
UKB termination statute.(86: I) Perhaps it is time to allow these two
groups, whom the Commissioner and Secretary of the Interior described as
recognized but not organized in the sense of OIWA or IRA, to prove that
they can meet the tests of the 25 C. F. R. 83 process. There is no way on
earth that the CNO would pass the "community cohesiveness" test of the
present acknowledgment process.
The CNO's approach in promoting Indian legislation against the UKB's
interests in the last Congress has resulted, according to some observers,
in the virtual termination of the UKB. The UKB has been placed in worse
circumstances that the Lumbee Tribe of Cheraw Indians, in that at least the
Lumbees are eligible for certain Federal programs targeted at federally
unacknowledged tribes that are state acknowledged. Citing Amendment 86, the
Administration for Native Americans (ANA/HHS) denies funding to the UKB
even though ANA/HHS extends grants to groups that never were acknowledged,
and to some that never will be. Therefore, while suffering the claim that
they are unrecognized and should be forced to undertake the Federal
acknowledgment process, the UKB could never apply for Federal funding to
clarify their status because they are acknowledged, and never could receive
the funding because of Amendment 86. The UKB is ineligible for funding and
services as a federally-acknowledged tribe, yet ineligible for
acknowledgment under the 25 C. F. R. 83 process. CNO and the politicians
whose loyalty Cherokee Nation has managed to acquire by guaranteeing votes
and cooperation deny its very existence as a federally-recognized tribe in
order to deny that they are engineering the Band's termination, because one
cannot terminate what does not exist.
As Dr. Eddie Frank Brown wrote in his 1990 position paper on the UKB
issue, "the United Keetoowah Band has been recognized as a tribe since 1950
. ."(United Keetoowah Band - Cherokee Nation, 30 October 1990, Dr. Eddie
Frank Brown to the Solicitor of the Department of the Interior) If Congress
allows Cherokee Nation of Oklahoma, the State of Oklahoma, or any other
third party to prevent the UKB from finding trust land and participating in
the Federal-Indian relationship somewhere on an equal basis with CNO, then
Congress must accept the judgment that they have reinstated the policy of
Termination; for Self-Determination remains a lie, and Termination
prevails, as long as Amendment 86 stands.

POSTSCRIPT: A MEDITATION ON THE BURNING PHOENIX

The UKB was reorganized between 1939 and 1950, under authority of the
1936 and 1946 Acts. Certain Chiefs of the UKB (Hitcher, Pickup, Tindle,
Gordon, Hair and Ross), certain administrators (Secretary William Warne,
Assistant Secretaries and Commissioners Collier, Zimmerman and McNickle,
Associate Solicitor Felix Cohen, Deputy Commissioner Seneca, and former
Muskogee Area Director Virgil Harrington), and certain politicians (Senator
Thomas, and Congressman Stigler) made special efforts to assure that the
UKB would function in perpetuity as a tribal government. On the other hand,
Principal Chiefs of Cherokee Nation (Milam, Keeler, Ross and Mankiller),
certain administrators (Assistant Secretaries Gerard, Smith, Swimmer and
Brown, former Muskogee Area Directors W. O. Roberts, Pennington,
Harrington, and certain of their successors), Oklahoma's senators, and
certain members of Congress, have made special efforts to dismantle the
work of their predecessors, to prevent the UKB from receiving Federal
support or the use of its own resources. Other players simply were
ineffectual or dupes, and we cover their faces with a curtain of charity.
* * *
The United Keetoowah Band often talk of their affinity with the
Phoenix rising from ashes. Throughout their history, intruders have driven
the Keetoowah Indians from their homes and "nests." During Removal, the
Civil War, the Dawes Commission and Statehood periods, the Keetoowah
Indians appeared ready to expire in flames. Always, the very spark that
threatened to consume the UKB -- along with its nest, its tribal domain --
seemed to leave the Band standing. These immolations included the rigors of
obtaining acknowledgment legislation in the 1946 Act, and the rebirth pains
of reorganizing under OIWA and IRA (1937-1950). However, after statehood
and the disposal of Cherokee lands and assets, the old nest -- the former
Cherokee domain -- remains a scorched pyre.
* * *
Since the UKB endured the flames of reorganization, CNO has become
like to the Cuckoo, laying her eggs in the rubble of the old nest, relying
on the Phoenix/UKB to care for her progeny, consisting of the masses of
Dawes Enrollees and their registered descendants of various tribes and
extractions. As any Phoenix when it first arises from its pyre, the UKB
resembled a little worm to the Cuckoos, fit only for Cuckoo-fodder, because
the Cuckoos misunderstood the nature of the Phoenix. Since the 1950s,
assuming the Phoenix was only a little worm, CNO has used UKB sovereignty,
business opportunities and property to benefit its own "brood," now
numbering some 140,000, while managing to evade -- and understanding little
-- the trial by fire that the UKB undertook to reorganize under the IRA and
OIWA. Like any Mother Cuckoo mimicking its host, CNO always has claimed
that the UKB and her brood are the same, asserting that CNO went through
the same fires of termination and survived to reorganize in the 1970s as
the true and sole heir to the former Cherokee Nation territory, the old
nest of the Phoenix.
* * *
The UKB, fully reorganized under OIWA and IRA, while attempting to
build a new nest for itself, accommodated and nurtured the CNO's new brood
of Dawes descendants until CNO adopted a new Constitution in 1976 and
experimented with conduct most Cuckoos have forgotten: providing for her
own young, though very selectively. Mother Cuckoo/CNO never has adopted a
current roll of its own progeny; but Cuckoo-like, has laid and jealously
kept count of her offspring in the nest of the Phoenix since the 1970s. CNO
has attempted to drive the UKB from the nest ever since.
* * *
On the ashes of the old Cherokee Nation, nest reconstruction has been
underway since Congress began to provide lands to the Cherokee Nation or
Tribe under the IRA, even though CNO is no more a tribe reorganized under
OIWA and IRA than a Cuckoo is a Phoenix. Having eliminated the UKB's
remaining role in controlling Cherokee services and programs on 16 January
1980 with the Gerard Letter, CNO refused to allow Keetoowahs services from
CNO, unless they accepted CNO registration and blended in with the flock of
Cuckoos. CNO refused to recognize or provide for the Cherokee Freedmen, for
apparently Cuckoos have problems dealing with progeny of color, ironically
claiming they are undeserving because they were cuckoos only by adoption.
However, adopted birds of any other feather are welcome.
* * *
Unable quite to unseat the Phoenix/UKB or drive it away, Mother
Cuckoo/CNO has set about starving the Phoenix by obtaining the passage of
Amendment 86 as part of the FY 1992 Budget legislation. In 1993, in
informing U. S. governors that the UKB is unacknowledged and merely
petitioning for recognition, Mother Cuckoo/CNO declared the Phoenix was
only a Cuckoo, while claiming herself to be the only true Phoenix in
Oklahoma. Sporting, as she always does on special occasions, the plumage
plucked from the Phoenix and its nest lining, Mother Cuckoo even convinced
the Eastern Band of Cherokees to go along with the game, putting a fire
under the Eastern Band's tail by hinting that CNO might support the
recognition of the Lumbee Tribe of Cheraw Indians, with whom Eastern Band
shares its North Carolina nest. During a nostalgic visit to an old roost in
Georgia, CNO and Eastern Band agreed to claim a monopoly over the right to
the name of Cherokee by fraudulently declaring themselves to be the only
federally-recognized Cherokee tribal entities. Already, most observers who
aren't coots or loons agree the act is all strut and horsefeathers; but you
can't convince some that the emperor has no clothes. The ones who aren't
too busy kowtowing in fear, or hoping for favors to see the naked truth,
either have their heads down because they're rolling out the red carpet in
front of him, or else they're fighting over who gets to carry his train or
succeed him.
* * *
The UKB has explored the option of submitting to a new fire (that is,
undertaking a new IRA election to revise its Constitution, along with
litigation regarding its rights within the former Cherokee Nation), or of
leaving its nest in northeastern Oklahoma to search for a new home.
Keetoowahs believe the conflagration which would result from the UKB's
success in distinguishing itself, its sovereignty, property and other
rights entirely from CNO's, finally will prove hazardous to CNO's brood. It
appears the only way to prove one's existence as a Phoenix in Oklahoma is
through renewal in the fires of reorganization under OIWA and IRA, unless
the asbestos suit of secretarial approval provides adequate protection. The
UKB may prove that the metaphor of the scorched-Phoenix-rising-from-ashes-
remade still fits the UKB through a new Federal secretarial election under
IRA; on the other had, the UKB may have to step off the nest and watch an
inferno of CNO's own making. At the moment, the Phoenix is poised
precariously on the rim, watching the cuckoos playing with fire with one
eye, while surveying new horizons with the other, hoping for safe arbor
elsewhere. The UKB/Phoenix may take flight on the wings reorganization
under OIWA and IRA provided in 1950. The great serpent stalking her nest
may be scotched in the beak of the new rising Phoenix dancing in her ashes.
* * *
How the Cuckoo and her brood may fare on the nest of the Phoenix is
unknown, because only a true Phoenix can take the heat if the nest ignites.
Meanwhile, the UKB believes the brood's lot is unenviable. Without the
Phoenix, the Cuckoo's chicks have no real Mother.