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.


                                   *
TO D'ARCY  MCNICKLE

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

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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.



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

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

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

     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.


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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


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., 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 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 Emigrant Indians, 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 GOVERNMENT
WITHIN 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-1096 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 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 of Christ into
Nighthawk religion. In 1936, the Keetoowah Society amended its constitution
to recognized 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 th