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Burning Phoenix

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

Copyright 1993 Allogan Slagle
All Rights Reserved


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. * * * * * * * * * * * * * * * DEDICATION: * * * * TO THE ETERNAL KEETOOWAH PHOENIX AND TO HER CHILDREN AND TO D'ARCY MCNICKLE WHO SAID THE EMPEROR WAS NAKED * * * * AND POINTED * * * * * * * * * * * * * * * * * * * * * * * * * * * * * T 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)] 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 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.
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.
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.
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. 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.
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