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
T
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.
T
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.
F
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 gr