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


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

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


A, D

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


                                   *
TO D'ARCY  MCNICKLE

T

TALKING POINTS

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

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

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

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

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

     6)   The Keetoowah Society, Inc., and other Keetoowah factions,
started organization work under the supervision of A. C. Monahan,
Regional Coordinator for Organization at Five Civilized Tribes Agency,
upon the discovery that indeed the Keetoowah Indians had a basis for
claiming historical existence as a recognized polity of Indians, August
1939. Investigators later find Kirgis was ignorant of the existence of
the 20 September 1905 Keetoowah Society, Inc. Federal Corporate Charter,
and its legal effect. In a determination of 24 April 1944, Tribal
Relations Branch officer D'Arcy McNickle categorically repudiated the
Kirgis Opinion, and in a meeting on 5 June 1944 with BIA Chief Counsel
Ted Haas, agreed that rather than simply ask the Solicitor to rescind the
old Opinion and submit another, that the Department would recommend to
the Secretary and Congress that Congress pass legislation to clarify the

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status of the Keetoowah Indians, thereby allowing the Band to reorganize
under OIWA and IRA.

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

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

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

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

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

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



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

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

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

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


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FOREWORD

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

                        A BRIEF UKB CHRONOLOGY


A BRIEF UKB CHRONOLOGY
    PRECONTACT TO 1730s:     Ani-gi-du-wah-gi, the Keetoowah People, find
their source at Keetoowah, a Mother Tribal Town in Swain County, North
Carolina, and its affiliated smaller towns. Political succession proceeded
through elected Captains, a Chief, and Beloved Women.
    1730s TO REMOVAL:   Despite cultural and political disruption between
the American Revolution and the Removal period, the Keetoowah Indians
retained what they could of their primary rules and ways. They enforced laws
through customary sanctions and the law of blood, maintaining their own local
tradition despite major changes in general Cherokee society. The Keetoowah
Indians were part of the core Red/War groups who had allied with the French.
Some began to move to what became Arkansas territory as early as the end of
the Seven Year War in 1763. The Keetoowahs who allied with the British during
the Revolution joined that first wave of emigrant Keetoowahs. The
Chickamaugas followed after their attack on a white trading party at Muscle
Shoals, Tennessee River, in 1794. They all settled among the Western
Cherokees (Old Settlers). The U. S. officially recognized Western Cherokee
Tribal Council and their territory in 1817. Other Keetoowahs followed, first
to Arkansas and then to Indian Territory. By 1819, they numbered about 6,000.
     The U. S. Supreme Court established some of the most important case law
regarding Cherokee Nation during this period:
     Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1 (1831).
     Worcester v. Georgia 31 U. S. (6 Pet.) 515 (1832).
    1838-1839, FORCED REMOVAL TO ARKANSAS AND OKLAHOMA:  The remnants of the
War Party in the eastern states were too weak to oppose structural changes in
Cherokee government. As removal of the Eastern Emigrants proceeded, the
Keetoowah Indians lived as they always had, relying on subsistence
agriculture, fishing and hunting, practicing the old religion, maintaining
social cohesiveness at various towns in Cherokee territory, with gatherings
and daily interactions across factional and family lines. The Western and
Eastern Cherokees were forced to form a coalition government under a
Constitution dated 6 September 1839. John Ross (Chief from 1828-1866)
maintained support from the Keetoowah traditionals because of his opposition
to removal and his marriage to a fullblood.
    1838 to 1860, KEETOOWAH REORGANIZATION IN OKLAHOMA:  Knowing that Civil
War would threaten their government and society, and committed to honoring
treaties with the U. S., Keetoowahs reorganized under a Constitution written
by a fullblood Cherokee Baptist Minister, Budd Gritts (1858-1859). Followers
of the Jones family (non-Indian church leaders) also were instrumental in the
reorganization of the Keetoowahs in the 1850s. Starting from a base of born
Keetoowahs, the band drew in and adopted fullbloods from all nine Districts,
but primarily from a region composing five northeastern Oklahoma counties
today. Called the Keetoowah Society, they revived the role their Mother Town
of Keetoowah enjoyed in pre-contact and pre-Removal historical times. Their
leaders were "Captains," under a Head Captain, or "Chief." In 1857, the War
Department offered the town the military reservation of Fort Gibson, from
which the Cherokee Council created the town of Keetoowah. The Cherokee
Council voted to move the Capitol there from Tahlequah, but Chief Ross vetoed
the plan. The Keetoowahs elected Louis Downing their Head Captain, and later
helped him to victory as Principal Chief.

    1860-1865, KEETOOWAH INDIANS IN THE CIVIL WAR:  All loyal Keetoowahs
opposed the Southern Confederacy and supported the Union. The Pin Indians, a
particularly aggressive faction, fiercely resisted assimilation and invasion
by all non-Indians. The Council of Keetoowah town (Fort Gibson) met until
May, 1863. Convening at Cowskin Prairie that year, the Keetoowahs denounced
the Confederate Cherokees and celebrated the abolition of Slavery. While the
Keetoowah Indians remained loyal to the end of the Civil War, they shared the
common humiliation of all Cherokees resulting from the punishment of Cherokee
Nation for its official alliance with the Southern Confederacy. The 1866
Treaty abrogated all others to the extent they were inconsistent, but the
Keetoowah delegates to the Treaty convention reluctantly signed.
    1866-1890, UKB FACTIONALISM AND CONFLICT:  Immediately after the Civil
War, conflicts arose over the purposes and direction of the Keetoowah
organization. While some Keetoowahs wanted to preserve the ancient Keetoowah
culture, language and religion in pure form as possible, others preferred to
amalgamate the old ways with aspects of non-Indian culture, including
christianity. (The Cherokee Tobacco 78 U. S. 616 case was decided in 1871.)
The Keetoowahs elected Dennis Bushyhead as Principal Chief in 1879 and 1883.
One political party called itself the Keetoowah Party in 1879 in order to win
fullblood votes. The Society lost controlling influence in tribal politics
with the increase of intermarriage and the increasing influence of mixed-
bloods.
     In 1887, the General Allotment Act (Dawes Severalty Act) authorized the
allotment of tribal lands to individual Indians and families. The Act did not
apply to Cherokee Nation (24 Stat. 338, Sec. 339, 1887). The land of Cherokee
Nation had to be allotted through an agreement in 1901, following actions of
the U. S. to limit the sovereignty of Cherokee Nation. The 1889 Act
established Federal courts in Indian territory, conferring limited civil
jurisdiction on tribes, and criminal jurisdiction over certain crimes,
excluding only Indian vs. Indian matters from Federal jurisdiction. The Act
terminated certain of Cherokee Nation's governmental powers over prescribed
territories and over its citizens. In 1889, reacting to the threat of
allotment, the political mission of the Society altered when a convention
amended the 1859 Constitution to include both religious and sectarian
functions, and to allow open meetings. All claimed to worship the same God,
as Keetoowahs.
    1890s to 1901, PREPARATIONS FOR STATEHOOD; THE CHEROKEE AGREEMENT, AND
THE DISSOLUTION OF INDIAN TERRITORY AND CHEROKEE NATION, AND ALLOTMENT:
Congressional investigations from the 1870s forward confirmed widespread
corruption in the Indian Service and the Five Tribes governments. Proponents
of Oklahoma statehood pressed for elimination of the original tribal
governments in the 1880s, seeking control of land, oil, and minerals. The
1893 Act created the Five Tribes Commission to negotiate with the Five Tribes
for extinguishment of tribal title in order to facilitate the creation of a
state of Oklahoma in Indian Territory, and starting the allotment process.
Proponents of an Indian State of Sequoyah lost. The 1895 Act extended
Arkansas criminal laws over Indian territory, leaving intact exclusive tribal
jurisdiction over tribal members. The 1897 Act conferred civil and criminal
jurisdiction on the United States courts in the territory over all persons
regardless of race, in addition to imposing the laws of Arkansas and the
United States throughout Indian territory. The Five Tribes Commission
concluded negotiations without the cooperation of the Five Tribes, making the
Curtis Act of 1898 inevitable.
     The Curtis Act (1898) forced the Five Tribes to allot their lands. This
Act seriously and deliberately weakened the Five Tribes' governments. The Act
granted territorial towns the right to establish municipal governments under
the laws of Arkansas, rendered the civil laws of the tribes unenforceable in
Federal courts, and abolished tribal courts. The Act prohibited payments by
the United States to tribal officers for disbursement to tribal members. The
Creek, Choctaw and Chickasaw tribes benefitted from the incorporation of
provisions of tentative agreements with these tribes, providing that if the
several agreements were ratified by these tribes, the provisions of the
respective agreements would replace conflicting provisions of the Curtis Act.
The Cherokee Nation had refused to negotiate a tentative agreement, and took
the full body blow of the Curtis Act.
     Though all Keetoowahs opposed allotment originally, the Keetoowahs split
over how to handle the issue after Cherokee Nation's 31 January 1899 election
on the Cherokee Agreement. The mixed-bloods of Cherokee Nation won in the
popular election to approve the agreement, and Congress ratified the it on 1
March 1901 (31 Stat. 848). The agreement provided that Section 13 of the
Curtis Act would not apply to Cherokee lands, and that "no Act of Congress or
treaty provisions inconsistent with this agreement shall be in force in said
nation" except Sections 14, 27 and 28 of the Curtis Act. These authorized the
incorporation of towns, the location of Indian inspectors in Indian
Territory, and abolished tribal courts. The Agreement did the following:
     1)   Prescribed the manner of the allotment of all Cherokee land;
     2)   Prescribed the manner of establishing town sites under the
     supervision of the Secretary of the Interior, including sale of town
     lots;
     3)   Established schools;
     4)   Continued the Cherokee Advocate newspaper;
     5)   Reserved land for town sites, churches, cemeteries and the like;
     6)   In Section 58, provided that "The tribal government of the Cherokee
     Nation shall not continue longer than March 4, 1906, subject to such
     future legislation as Congress may deem proper;"
     7)   Conferred U. S. citizenship upon Cherokees;
     8)   In Section 72, provided that "Nothing contained in this agreement,
     however, shall be construed to revive or re-establish the Cherokee
     courts abolished by said last-mentioned Act of Congress (Curtis Act), or
     the authority of any officer, at any time, in any manner connected with
     said courts;"
     9)   in Section 75, provided that "No act, ordinance, or resolution of
     the Cherokee national council in any manner affecting the lands of the
     tribe, or of individuals after allotment, or the moneys or other
     property of the tribe, or of the citizens thereof, except appropriations
     for the necessary incidental and salaried expenses of the Cherokee
     government as herein limited, shall be of any validity until approved by
     the President of the United States."
This Agreement effectively placed the Cherokee Nation under the direct
management of the United States.
     In November 1899, the Keetoowah Society convened in Tahlequah to pass
resolutions critical of the Cherokee Council and the Dawes Commission,
particularly with regard to plans to dispose of Cherokee land and to create
a roll without the consent of the Cherokee Nation. They challenged amendments
to the Constitution, and resolved to enroll only under protest. The
Keetoowahs in convention at Big Tucker Springs on 6 September 1901 decided to
enroll with the Dawes Commission led to a final schism between Keetoowah
factions. Redbird Smith left the meeting with eleven of his traditionalist
supporters to resist enrollment actively, forming the Nighthawk Keetoowahs.
     Several hundred Keetoowah Indians, including several groups that started
out as members of the Keetoowah Society and left with the Nighthawks in 1901,
coalesced to form a number of secretive, traditionalist, exclusive factions.
Most of these groups started near Gore, Vian, or Proctor, and adjoining
areas. These groups were nascent within the Keetoowah Society as early as
1893, and derived from Goingsnake fire or various of the Four Mothers Nation
fires. Like the Nighthawks, these groups generally refused until 1910 or
later to accept the work of the Dawes Commission.
     While they fully intended to maintain tribal government and functions
regardless of the fate of the Cherokee Nation, the Keetoowahs as a body
officially acquiesced under protest to the effect of all the legislative
provisions that would dissolve Cherokee Nation's government and allot
Cherokee lands. They learned that they could not prevent the 1893 Act, the
Dawes Commission enrollment, U. S. citizenship, the Curtis Act and the
abolition of tribal courts, the Agreement with the Cherokee Nation of April
1, 1900, the 1906 Act and the virtual political dissolution of the corrupt
Cherokee government as of 4 March 1906, presidential approval for all tribal
ordinances affecting tribal or individual lands after allotment, and the
allotment in severalty of Cherokee lands. See Cherokee Nation v. Southern
Kansas R. R. 135 U. S. 641 (1890) and Cherokee Nation v. Journeycake, 155 U.
S. 196 (1894).
    1901 TO 1906, THE FIVE TRIBES ACT, AND THE REORGANIZATION OF THE
KEETOOWAH SOCIETY, INC., THE CREATION OF THE NIGHTHAWK KEETOOWAHS, AND OTHER
FACTIONS:  During this period, the Keetoowah Indians lived throughout most of
the old Cherokee districts, with the smallest constituencies in Cooweescoowee
and Canadian Districts. The majority of the Keetoowah Indians later formed
the political entity known as the Keetoowah Society, Inc., on 20 September
1905, because they knew that the Cherokee Nation was about to dissolve for
political and practical purposes, leaving Cherokee Nation with no other
general representative government unless the Keetoowahs carried on as a
political body. The Keetoowah Indians believed they had to resort to their
earlier governmental forms. Using a Federal Corporate Charter (20 September
1905) from the Territorial District Court in Tahlequah, as the Keetoowah
Society, Inc., this faction functioned as a polity composed of a Chief and
Council for the express purpose of carrying on the political and social
functions of a Band. Because opposing factions like Redbird Smith's
Nighthawks opposed any political organization they could not dominate, the
Keetoowah Society, Inc., Inc., could not fully represent the interests of the
Keetoowah Indians until they resolved such differences. Such a reconciliation
was impossible until the Nighthawks resolved to be a religious and social
organization with no political interests.
     Robert Owen, head of the Union Agency of the Five Civilized Tribes, one
of Oklahoma's first U. S. senators and a Cherokee descendant, presented a
memorial for the Keetoowah Society, Inc., at the Sequoyah Convention in 1905.
He worked with attorney Frank Boudinot, the Keetoowahs' legal counsel after
1896 and Secretary after 1901, to prosecuted claims against the U. S. in
behalf of the Keetoowahs. The Keetoowah Society, Inc., elected Frank Boudinot
Chief of the Tribe in 1905, but with no legal effect on Cherokee Nation
except within the Keetoowah Society, Inc. Like the Nighthawk Keetoowahs and
other Keetoowah factions, the Keetoowah Society, Inc., granted membership to
some who were less than fullblood but who were socially and politically
fullblood.
    1906-1934, THE GROWTH OF THE KEETOOWAH GOVERNMENTAL ORGANIZATION PRIOR
TO IRA:  The Five Tribes Act of 1906 provided for final disposition of the
property and legal affairs of the Five Tribes, with special emphasis on the
allotment process, and the establishment of municipalities in Indian
Territory, clearing the way for statehood. The Act adopted language from
various of the agreements with the Five Tribes, and drastically limited the
sovereignty of Cherokee Nation:
     Section 11 [Tribal Taxes Abolished] . . . Provided, That all taxes
     accruing under tribal laws or regulations of the Secretary of the
     Interior shall be abolished from and after December thirty-first,
     nineteen hundred and five, but this provision shall not prevent the
     collection after that date nor after dissolution of the tribal
     government of all such taxes due up to and including December thirty-
     first, nineteen hundred and five, and all such taxes levied and
     collected after the thirty-first day of December, nineteen hundred and
     five, shall be refunded.
     Section 28 [Tribal Government Preserved to the Extent Not Terminated] .
     . . Provided, That the Tribal existence and present tribal governments
     of the Choctaw, Chickasaw, Cherokee, Creek and Seminole tribes or
     nations are continued in full force and effect for all purposes
     authorized by law, until otherwise provided by law. . . . but the tribal
     council or legislature in any of said tribes or nations shall not be in
     session for a longer period than thirty days in any one year; Provided,
     That no act, ordinance, or resolution (except resolutions of
     adjournment) of the tribal council or legislature of any of said tribes
     or nations shall be of any validity until approved by the President of
     the United States; Provided further, That no contract involving the
     payment of expenditure of any money or affecting any property belonging
     to any of said tribes or nations made by them or any of them or by any
     officer thereof, shall be of any validity until approved by the
     President of the United States.
The Cherokee Nation still had a special trust relationship with the Federal
government, and had not been terminated in the sense that tribes were during
the 1950s. Congress expressly extended the existence of the Cherokee Nation,
and intended that members could elect to continue its functions, or abandon
tribal relations as they saw fit. The Cherokee Tribe retained on paper the
basic powers necessary to carry on self-government, including the right to
choose a form of government and select representatives, and to disburse
assets.
     However, Cherokee Nation's members did not choose to carry out these
functions, and abandoned virtually all the governmental activities the Act
allowed them to preserve. The presidentially-appointed Principal Chief
constituted the sole Cherokee government. By the 1930s, the Department found
no extant functional Cherokee Nation government, but only a shell, consisting
of the presidentially-appointed Principal Chief, whose main function was to
sign papers disposing of Cherokee assets. Also, after all the legislation of
the 1890s to 1907, congressional limitations on Cherokee Nation's sovereignty
far outweighed the retained attributes.
     After 1907, the Nighthawk Keetoowah Society, in true sectarian spirit,
named itself the "Original Keetoowah Society," based on the prophetic
insights of several of the leaders. John Smith, son of Redbird Smith, and
would-be prophet, continued to issue prophetic utterances in this vein
throughout his life, long after the Nighthawks had adopted an official stance
that they were not a political organization:
     This is the original Kee-Too-Wah Society. . . . Any other organization
     or body functioning or claiming representation under the name of the
     Kee-Too-Wah Society are fictitious and impostors.(26 May 1937)
John Smith, the most influential Nighthawk leader among Redbird Smith's sons,
had lost virtually all credibility among Keetoowahs by the 1930s due to his
disastrous support of the Oneida con artist Chester Polk Cornelius. Cornelius
nearly destroyed the Nighthawk organization with failed get-rich-quick
development schemes that left many members landless and destitute. Some
Nighthawk spokesmen and leaders now erroneously claim the UKB is a splinter
of their religious cult, though the Nighthawks officially withdrew from all
political activity after 1901, and barred its members from affiliating with
any other groups or entities, including christian churches. As the number of
tribal towns associated with the Nighthawks dwindled from 21 in about 1900 to
3 in 1937, the remnants of the "non-political" Nighthawk faction eventually
collapsed into a variety of factions. These included two ceremonial grounds
run by opposing factions of Redbird Smith's own family at Redbird's and at
Stokes Smith's grounds, as well as the Goingsnake "Seven Clans" fire, the
Medicine Springs Fire or Medicine Society, and the Four Mothers Nation.
     Other Cherokee political factions arose among the Keetoowahs, partly due
to concerns about potential claims, partly to organize formally as a
federally-recognized Tribe: the Cherokee Emigrant Indians, the Cherokee
Immigrant Indians, and the Eastern and Western Emigrants. These factions of
Oklahoma Keetoowah Cherokees by blood pulled together a coalition from the
northern 14 counties of Oklahoma between 1920 and 1924, electing a Chief
(Levi Gritts), and an Executive Council of Cherokees by Blood out of the body
of the Keetoowah Society, Inc. During the 1930s, the majority of Keetoowah
factions, now without any support of the dwindling Nighthawk separatists,
supported the idea of reorganizing all the Keetoowah Cherokees in all the old
clan districts as a united Band under the proposed Indian Reorganization Act.
The Cherokees by Blood, representing all Cherokee descendants rather than
Keetoowahs alone, failed in 1932 to obtain standing as a party to the
Cherokee claims litigation. However, the Keetoowahs persisted as a political
body apart from the Cherokees by blood.
    1934-1937, THE IRA: The Land Division in the Department of the Interior
concluded in 1934 that, unlike the other Five Tribes, Cherokee Nation was
neither interested in reorganizing, nor capable of doing so. Unlike the other
Five Tribes, Cherokee Nation had stopped electing officers and holding
meetings. Most members simply had abandoned tribal relations after 1906, and
by the Great Depression, were leaving Oklahoma by the thousands. Only the
Keetoowah Indians were willing and probably able to reorganize in Oklahoma
with great success, if the factions would only pull together. CNO could only
reorganize under OIWA and IRA today through an election relying almost
entirely on absentee ballots.
     At the Muskogee hearing concerning the draft Indian Reorganization Act
on 22 March 1934, Keetoowahs shouted down their opponents and presented John
Collier and his staff with a formal petition and letter supporting the IRA,
and orchestrated a motion from the assembly roundly endorsing the
legislation. Shortly thereafter, the Commissioner received a telegram,
opposing reorganization. Though supposedly wired from the Keetoowah Council,
upon investigating, the Commissioner learned the message was a forgery.
Collier publicly praised the Keetoowahs for their enthusiasm and
understanding for reorganization in a variety of writings and press releases.
Interior Associate Solicitor Felix Cohen monitored the Keetoowahs' efforts to
reorganize. Keetoowah leaders offered plans for reorganization, along with
lists of members who supported IRA. Neither the Cherokee Principal Chiefs nor
any general representative body of Cherokee Nation itself showed any support,
while various non-Keetoowah Cherokees wrote to the Commissioner denouncing
the plan. A. M. Landman, Five Civilized Tribes Superintendent, predicted that
the mixed-bloods would control any pan-tribal Cherokee organization. Landman
believed that a fullblood organization was best suited to represent the
fullbloods. However, each faction demanded recognition as the exclusive
representative government of the Tribe.
    1937-1939, OIWA AND EARLY ATTEMPTS TO A REORGANIZE KEETOOWAH GOVERNMENT
WITHIN CHEROKEE NATION'S FORMER BOUNDARIES:  Oklahoma Senator Elmer Thomas,
who believed the IRA should be restricted to reservation Indians, co-authored
the Oklahoma Indian Welfare Act to allow Indians living on allotted lands in
the state to avail themselves of the benefits of IRA. Though the
participation of Oklahoma Indians in the IRA was not possible until the
Thomas-Rogers Act of 1936 enabled reorganization under IRA through the OIWA,
the Keetoowahs began planning to organize under the legislation. Just as A.
M. Landman had predicted, the Keetoowah Society, Inc., at the urging of Levi
Gritts, sought permission to represent the Keetoowah Indians, while certain
other factions still demanded recognition as the exclusive representative
government of their own small following, if not of the Tribe.
     BIA anthropologist Dr. Charles Wisdom conducted research on the
Keetoowah Indians starting 5 May 1937 with the cooperation of Organization
Field Agent Ben Dwight. Wisdom did not realize the Keetoowahs had a Federal
Charter predating to the dissolution of Cherokee Nation, showing the
Keetoowahs' intent to maintain a governing entity within Cherokee Nation
despite the effect of other Federal legislation. While the Nighthawk
Keetoowahs were willing to submit to an interview, the Nighthawk leaders
later utterly rejected the idea of participating in organization, primarily
because they were not to be the focus of the project. Levi Gritts's effort
failed when Associate Solicitor Frederick Kirgis issued his Keetoowah-
Organization as a Band Opinion (29 July 1937), based on Charles Wisdom's
brief ethnographic study, concluding that the Society, or any of its
factions, standing alone, was only a society of the Keetoowah Indians, and
never had been a governing polity within the Cherokee Nation.
     A Land Division decision in October 1937 stated that the Cherokee Nation
government under the 6 September 1839 Constitution was ineligible to
reorganize to undertake the functions of the 1906 government. Congress had
dissolved most aspects of the inherent sovereignty of the Cherokee Nation
government as set out in the 6 September 1839 Constitution.[(MEMO TO INDIAN
ORGANIZATION, 25 October 1937, from Director of Lands (WDW) to Daiker, Indian
Organization (163618); see also Solicitor's Opinion, 1 October 1941, 1 Op.
Sol. on Indian Affairs 1076 (U. S. D. I. 1979)] The decision binds CNO,
despite the Harjo v. Kleppe court's finding that the Five Tribes still
existed in 1972, and that the citizens of those tribes had the right to
organize governments under OIWA and IRA. Thus, while the Cherokee Nation was
not terminated, any new organization of the Cherokee Tribe would have to be
an entirely new entity. Field investigators reaffirmed that Cherokee citizens
forming the general class of Dawes enrollees, with the exception of the
Keetoowahs, had abandoned tribal relations and had no interest in
reorganization.
    1939-1946, THE UNION OF KEETOOWAH FACTIONS TO FORM THE UKB: Contrary to
post-1979 accounts by CNO, the UKB Base Roll was the BIA-approved 1949 UKB
Base Roll, not the 1907 Cherokee Dawes Commission Roll. Neither Principal
Chief Jesse B. Milam nor W. W. Keeler had any role except as bystanders in
the UKB reorganization. The UKB was never intended to be a mere loan
association. The UKB was federally-chartered under Section 3 (not Section 4)
of the OIWA. The UKB never identified itself with the Nighthawk cult, because
most UKB members belonged to Protestant denominations.
     In June 1939, Organization Field Agent Ben Dwight informed Regional
Coordinator of Organization for the Five Civilized Tribes Agency, Muskogee,
A. C. Monahan, that Kirgis had been unaware of the Keetoowah Society, Inc.'s
Federal Corporate Charter (20 September 1905). In obtaining that Charter, the
Keetoowah Indians had established recognition as a polity of Indians. That
recognition should have made them eligible to reorganize under OIWA and IRA.
Realizing the legal effect of that document, A. C. Monahan assigned Ben
Dwight and A. A. Exendine to help the Band to organize a coalition government
between 1939 and 1946 including the Society, Inc. and other factions as well.
     The United Keetoowah Cherokee Band of Indians (UKB) formed a
Constitution and By-laws in 1939, and held popular elections between 1939 and
1946, seating a Chief, Reverend John Hitcher (1939-1946), and a Council. The
UKB undertook land acquisition efforts for the purpose of establishing a
Federal trust land base in Oklahoma in 1942, but the Department would not
cooperate without congressional approval. Some Five Civilized Tribes Agency
employees hoped to use the Band as a vehicle for restoring the Old Cherokee
Nation, or at least for reorganizing all the Cherokee Dawes Commission
enrollees and their descendants under OIWA and IRA. However, the 25 October
1937 decision of the Director of Lands, Land Division, Department of the
Interior, prevented that result. The UKB decided by 1942 to remain a
"Keetoowah" Cherokee polity including only Cherokee descendants who met the
UKB membership requirements. The Department determined that an organization
of the Keetoowahs, reuniting the various Keetoowah factions and other
Cherokees of one-half blood or more who wanted to participate, did not
conflict with the residual government of the Cherokee Nation. The latter was
to retain its 1906 status under an appointed Principal Chief.
      D'Arcy McNickle's determination of 24 April 1944 found the UKB was a
historical tribe (see full text below). Rather than merely ask the Solicitor
to rewrite the opinion, Acting Interior Secretary Abe Fortas asked Congress
to pass the 10 August 1946 Act acknowledging the UKB's historical status and
eligibility to reorganize under OIWA and IRA. The legislative history and
intent contemplated recognition of a united body of Keetoowah Indians of 1/4
degree Indian blood or more, with the possibility of enrolling persons of
lesser degree in the future. Keetoowah Indians of all factions and
communities worked with the Organization Field Agents through Five Tribes
Agency after 1946 to reunite under a common secular leadership, although
every UKB Chief from 1939 to 1979 was a protestant clergyman. UKB interest in
Cherokee-related issues was entirely restricted to interests of the UKB
constituency, composed primarily of restricted Indians, non-Dawes enrollees,
and other Keetoowahs who remained loyal to the Keetoowah political ideals.
    1946-1950, THE KEETOOWAH INDIANS ACT AND THE UKB REORGANIZATION:
Reverend Jim Pickup (1946-1954, 1956-1957, 1960-1967) succeeded Reverend John
Hitcher (1939-1946) at the latter's death in 1946, continuing as Provisional
Chief until reorganization was complete. Pickup continued as Chief,
alternating with Jeff Tindle, until 1967. Due to the Kirgis Keetoowah -
Organization as a Band Opinion (29 July 1937), the UKB reorganization process
could not begin until Congress agreed to offer the UKB the opportunity to
reorganize under OIWA and IRA. The Organization Field Agents, congressional
staff, and Acting Interior Secretary Abe Fortas, Congressman Stigler and
Senator Thomas supported the proposed UKB reorganization, based on the
results of additional research and the success of organizing efforts.
Congress passed the Keetoowah Act on 10 August 1946, as part of a package
measure including a gift of land to the Cheyenne-Arapaho Tribe in Oklahoma.
     Although in the 1930s the plan was to organize half-bloods only, the
1946 Act did not contemplate the organization of an adult Indian community
under Section 479 of the IRA, but of a sovereign tribe in the full sense
under Section 476 of the IRA. Therefore, the 1949 UKB Base Roll was open to
quarter-bloods, anticipating the future adoption of other Cherokee
descendants of lesser blood. The reorganization process took another four
years. On 1 May 1949, anticipating the roll the UKB would have in managing
their share of Cherokee Nation property, the BIA named Chief Jim Pickup as
Trustee for Cherokee Nation assets. On 9 May 1950, Secretary Warne signed the
approved UKB Charter, and issued a statement that the UKB treaty rights could
be found in the treaties of the Cherokee Nation. The UKB corporate Charter,
Constitution and By-laws were adopted 3 October 1950 by the majority of
qualified voters. Thereafter, the UKB, incorporating all the factions of the
Keetoowah Indians of the Cherokee Tribe throughout the nine districts of the
old Cherokee Reservation, continued to repose its secular governmental
authority continuously in democratically-elected Chiefs (also informally
called, in the 1940s, "Presidents"), Executive Officers, and a Tribal
Council, with other subordinate officers and officials as needed.
     The 1939 Roll, reaffirmed in 1949, became the foundation of the Base
Roll, subject to amendment by 3 October 1955, though the UKB updated it in
1985 with secretarial approval. During the periods of open enrollment,
consistent with the 1950 enrollment laws, members of 1/4 or more Cherokee
ancestry, using the Dawes Roll or any other acceptable proof of Cherokee
ancestry by blood, were adopted into the Band. Enrollment remained open,
though enrollment ordinances changed several times.
    1950-1964, THE UKB DURING TERMINATION:  Despite undocumented and
spurious claims to the contrary, archival sources demonstrate that the Band
continued to survive and function as a tribal entity since reorganization,
although not without heated election controversies and partisan feuds, such
as those between the Jeff Tindle (1954-1956, 1957-1960) and Jim Pickup (1956-
1957, 1960-1967).
     With the aid of Earl Boyd Pierce, Esq., the UKB resumed efforts to
borrow money in order to acquire a tribal trust land base, through the
OIWA/IRA revolving credit. In refusing to extend loans to the UKB, the BIA
relied on the point that the UKB was not organized under Section 4 of the
OIWA as a loan association, but was a recognized tribe organized under
Section 3. When the policy was changed making the Section 3 organizations
eligible to apply, another general policy of BIA Superintendent W. O. Roberts
and the Eisenhower Administration prevented loans for such trust land
acquisition. When UKB Chief Jeff Tindle attempt to have Principal Chief W. W.
Keeler replaced, Muskogee Area Director Fickinger seized on the occurrence of
a UKB election dispute to declare the UKB without a government. When the Band
appealed, the BIA Commissioner Glenn Emmons admonished Fickinger on his
refusal to recognize UKB's Council.
     Between 3 October 1950 and 3 October 1960, while the Secretary retained
approval authority over the UKB, but the Department determined that such
authority lapsed on 3 October 1960 (see Letter, 15 October 1961, from
Assistant Chief Tribal Operations Officer Pennington to Muskogee Area
Director Virgil N. Harrington, regarding Harrington's 7 August 1961 inquiry
as to the effect of Sections 5, 6 of the UKB's Charter on secretarial
approval authority after 3 October 1960). Principal Chief W. W. Keeler never
obtained supervisorial authority over the UKB, except covertly, by arranging
with Area Director Harrington and the UKB's attorney to receive all
information regarding their private undertakings so that he could veto them
if they did not suit him.
     After Chief Pickup resumed office, replacing Chief Jeff Tindle, the BIA
began to work with the UKB to make the Band the vehicle for delivering
services to its own members and to other service-eligible Cherokees. In 1963,
the BIA and Cherokee Nation realized that because of restrictions in the
Band's Charter that could not be lifted without a secretarial election, the
UKB was unable to engage in land transactions that involved long-term leases
or sale of acquired tribal lands. The UKB continued to seek trust land
acquisition for tribal housing and its own governmental offices and business,
with no cooperation from the BIA.
     Members of the UKB Tribal Council continued to administer enrollment and
to verificy qualifications of prospective members, approving enrollment
updates through formal Council action. A 4 June 1963 enrollment ordinances
required new members to prove 1/2 or more degree of Cherokee Indian blood,
but the 23 November 1964 enrollment ordinance restored eligibility to quarter
bloods. All enrollment ordinances continued to rely upon the 1949 UKB roll.
    1964-1976, THE UKB DURING RECONSTRUCTION OF CHEROKEE NATION:
Cherokee Nation or Tribe and the UKB embarked on joint enterprises in the
early 1960s. The UKB Council and Chief Pickup tried to help all Cherokees,
regardless of UKB affiliation, by acting as the Cherokees' sponsoring
federally-acknowledged tribal organization for the purpose of bringing in
funds and programs to Oklahoma. Chief Jim Pickup, as Trustee for the trust
assets of Cherokee Nation (4 May 1949 - 17 May 1967), wanted the UKB
Council's joint and concurrent control over Cherokee trust assets, programs
and services within the boundaries of the old Cherokee Nation to continue,
for the benefit of the UKB's own members.
     UKB Chief Jim Pickup and UKB Chief Bill Glory (1967-1979) attempted to
work cooperatively with Cherokee Nation, even though UKB members bitterly
criticized both of them for being too accomodating and giving away the rights
of the UKB. Some leading members of the UKB Council even resigned in protest.
Relations deteriorated irreparably between Chief Glory and Principal Chief W.
W. Keeler by 1974. Keeler evicted Glory from the small UKB tribal office
housed in the CNO tribal complex at Tahlequah after Glory retired from the
Cherokee Nation Housing Authority. Cherokee Nation attempted thereafter to
close all doors to UKB participation in Cherokee property and activities.
     The Act of Oct. 22, 1970, 91st Cong., 2nd Sess., P. L. 91-495, 84 Stat.
1091 (1970), the Bellmon Bill, "Authoriz[ed] Each of the Five Civilized
Tribes of Oklahoma to Select Their Principal Officer . . . ."  However,
Commissioner Louis Bruce, in American Indian Tribes and their Federal
Relationship, Plus a Partial Listing of other United States Indian Groups
(Wash., D. C.: U.S. Dept. of Interior, BIA, March, 1972) declared that the
UKB is a fully recognized Class 1 OIWA/IRA tribal entity, while Cherokee
Nation remained an unorganized Class 3 service population. Federal court
challenges later determined that the presidentially - or secretarially -
appointed Principal Chiefs of Cherokee Nation since 1906 were bona fide heads
of state, but those decisions had no legal effect on the status of the UKB.
    1976-1990, THE UKB DURING CHEROKEE NATION OF OKLAHOMA'S SELF-
DETERMINATION: CNO opposed the UKB's continuing efforts to establish a land
base, tribal office complex, businesses, and to maintain a separate roll. CNO
began exploring ways to terminate the Band, including through administrative
and congressional action. The course of choice was to request nullification
of the UKB Corporate Charter as provided in Section 8 of that Charter.
     CNO adopted a non-OIWA/IRA government under a 5 July 1976 Constitution
that Commissioner Morris Thompson and Ross O. Swimmer co-approved 2 October
1975. CNO claimed this document to be the legal equivalent of an OIWA
Charter, Constitution and By-laws. CNO claimed that the UKB and CNO shared a
common base roll and service population, and that CNO should control all
funding and trust assets within the former boundaries of Cherokee Nation.
Litigation addressed question whether the Cherokee government was terminated
in 1906. The BIA supported CNO's claim that the OIWA and IRA abolished the
effect of the 1906 Act in that the Tribe was eligible for the benefits of
OIWA and IRA; however, no one has explained how any Tribe can avail itself of
the full benefits of OIWA and IRA without reorganizing accordingly. Congress,
having limited the inherent sovereignty of Cherokee Nation, began to restore
it through piecemeal legislation in the 1980s. The BIA also gave CNO special
dispensations that went around the intent of OIWA and IRA. UKB's organization
under OIWA / IRA became a liability, when Swimmer slurred the OIWA, IRA and
1946 Act, claiming the UKB was a "created" tribe lacking any sovereignty.
     UKB political and governmental activities and economic development
efforts were muddled during the early to mid-1970s, dissolving into factional
disputes between Chief Bill Glory and the Tribal Council. The feud led to the
development of a Shadow or Underground government under the leadership of Tom
Hicks, Henry Doublehead and Willie Jumper. Eventually, Jim Gordon (1979-1983)
was elected as the new Chief to succeed Glory after Tom Hicks withdrew. UKB's
Council, gridlocked during the mid-seventies, returned to an even keel when
the Council sought aid from Muskogee Agency to restore order and clear the
wreckage left after Chief Glory's chaotic administration.
     The years of Chief Jim Gordon's administration (1979-1983) were fraught
with controversy and a taste of the unrelenting harassment of CNO to come.
Under Chief Gordon, the Enrollment Committee expanded enrollment activities,
under a series of new ordinances. For a time, eligibility expanded, though
few outside the original eligibility classes availed themselves of the
opportunity. New additions to the Roll occurred through Council resolutions
in 1980, and in another series of additions, concluding in October 1982.
During these years, the UKB attempted to participate in various programs and
development strategies with mixed success, due to lack of resources, lack of
cooperation from the BIA and the State, direct interference from CNO, and the
UKB's own internal political confusion and distress.
     In the Federal Register, Vol. 44, No. 26, Tuesday February 6, 1979, pp.
7235-7236, the Secretary of the Interior lists the UKB as a federally-
recognized, service-eligible entity. The Department has since characterized
this and similar publications as binding determinations of the Department
regarding the recognition of tribes, both in Federal litigation and in
congressional hearings.
     Principal Chief of Cherokee Nation Ross O. Swimmer denied UKB's
historical existence for the first time of record to Oklahoma Senator Henry
Bellmon, in a Letter, 27 April 1979. Swimmer claimed the UKB was "created" by
the accidental inclusion of their name in the 6 February 1979 Federal
Register notice; see also Letter, 30 April 1979, Principal Chief of Cherokee
Nation Ross O. Swimmer to Oklahoma Senator David Boren, denying UKB's
historical existence. The claims that the UKB is a sovereign inferior to CNO,
that the UKB has no rights as a Federal-Indian tribe, regardless of source or
basis, do not antedate 6 February 1979, and probably are no earlier than 27
April 1979.
     In May 1979, Assistant Deputy Commissioner Martin Seneca issued a
decision requiring the UKB and CNO to issue concurring resolutions to obtain
P. L. 93-638 "tribal organization" funding. CNO Principal Chief Ross O.
Swimmer lobbied successfully with Assistant Secretary Forrest Gerard to
overturn the Seneca determination. However, in characterizing the
organization of federally-acknowledged tribes listed in the 6 February 1979
Federal Register notice, on 20 November 1979, Ms. Patricia Simmons, Tribal
Relations Specialist, submitted to the Chief, Branch of Tribal Relations, a
detailed report titled, "Organizational Status of Federally Recognized Indian
Entities." Simmons surveyed a category (p. 2) of "Officially Approved
Organizations Pursuant to Statutory Authority (Indian Reorganization Act:
Oklahoma Indian Welfare Act; and Alaska Native Act), finding (p. 3), UKB had
a Council organized under a Federal Corporate Charter. In the "Other"
category of "Officially Approved Organizations Outside of Specific Statutory
Authority," (p.7), Cherokee Nation (with a Council) was listed.
     On 16 January 1980, Gerard eliminated requirements that CNO obtain
concurring resolutions from the UKB to apply for any Federal program funds
serving Cherokees. CNO continued to claim that the UKB and CNO have a common
population, though very few CNO members ever were eligible for membership in
the UKB. The Band obtained a P. L. 93-638 Grant to amend the 1949 Base Roll
and produce a current (1986) Roll. In the first month of the project, the BIA
reaffirmed that the UKB Base Roll was distinct from the 1907 Cherokee Dawes
Commission Roll, and therefore was a Base Roll distinct from CNO's.
     The Band transmitted the updated 1949 Roll, the newly approved and duly
adopted 1986 Membership Roll, and the Final Report of P. L. 93-638 Grant
G08G142002 to the BIA's Muskogee office as a deliverable on 16 March 1986.
The Band submitted these records to Federal District Court with a cover note
from the BIA Muskogee Area Office, in the course in litigation in 1987 in
Cordelia Tyner, a/k/a/ Cordelia Tyner Washington, and the United Keetoowah
Band of Cherokee Indians v. State of Oklahoma, ex re., David Moss, District
Attorney and David Moss, individually; M. Denise Graham, individually, No.
87-2797, U. S. D. C., N. D., Oklahoma., when the State subpoenaed a copy of
the Band's tribally-certified roll.
     In 1988, the Department found that the 1976 Cherokee Nation was, as
constituted, "the full successor to the Cherokee Nation of the first decade
of this century."(Letter, 4 February 1988, Hazel E. Elbert, Acting Assistant
Secretary of Interior for Indian Affairs, to James G. Wilcoxen, Esq.,
Wilcoxen and Cate, Muskogee, Oklahoma) However, unexplained questions
regarding the Tribe's inherent sovereignty, precisely because it is the full
successor to the Cherokee Nation as dissolved in part and preserved in part
in 1906. The Department did not find that CNO had any authority over the UKB,
a tribe organized separately under OIWA and IRA. Elbert did find that the 25
October 1937 Land Division Opinion remained in effect.
     UKB Membership Ordinance 90 UKB 9-16 16 September 1990 provides that any
descendant of 1/4 Cherokee Indian blood of any enrollee on the 1949 UKB Base
Roll, or on any other historical Cherokee Roll, shall be eligible for
enrollment in the UKB. Final determinations of Cherokee Indian blood quantum
rest with the UKB Tribal Council. Under that ordinance, UKB members who held
affiliation of any kind with any other federally-acknowledged tribe were
required to relinquish that membership. The UKB continues to require
relinquishment for new applicants, but is setting up the process for an IRA
election to change enrollment requirements to require relinquishment and to
ban dual affiliation.
     Finally, in 1990, after a systematic review of the United Keetoowah
Band's enrollment and membership files (and a comparison of those data with
the Cherokee Nation of Oklahoma's data), the BIA Muskogee Area Office
confirmed, that more than 3,000 members of the United Keetoowah Band,
including its Base Enrollees, never were registered with Cherokee Nation of
Oklahoma, and therefore never had any form of dual affiliation with that
entity. Some 4,700 UKB members either never voluntarily registered with
Cherokee Nation of Oklahoma, or once were registered (voluntarily or
involuntarily), but subsequently voluntarily relinquished their CNO
registration. On 24 July 1992, Rosella C. Garbow, Muskogee Area Tribal
Operations Officer, declared:
     This is to certify that records created in 1985 show that the United
     Keetoowah Band of Cherokee Indians in Oklahoma has approximately 4,700
     enrolled members residing within their service area.
Over 250 more UKB members have relinquished their affiliation with any other
federally-recognized tribe since that date. The 1986 United Keetoowah Band
Roll, completed during the P. L. 93-638 grant, was known to be an official
Tribal Roll for all purposes, duly adopted by the Tribal Council, and
authenticated by the BIA, within the meaning of Federal Indian Law. It is up-
to-date, and there are regular monthly additions through adoption, and
clarifications of exclusive affiliation through relinquishment from Cherokee
Nation of Oklahoma.
     Regardless of Dawes descendency, it is the policy of the United
Keetoowah Band of Cherokee Indians in Oklahoma that all lineal descendants of
the 1949 Base Roll and current roll are automatically eligible for membership
in the Band. The UKB hoped that the enrollment update and other status
clarification efforts would result in separation of their population from
CNO's, and would lead to the development of a UKB land base and separate
programs. However, a separation of the two populations required the
cooperation of CNO, and that was virtually impossible for the UKB to obtain.
The UKB sought to finance litigation to obtain a clarification of their
political and economic rights, but CNO intervened with all agencies,
foundations, corporations, local governments and Congress to prevent any
successful business ventures.
    CONCLUSION: 1990-1993, THE CHEROKEE NATION OF OKLAHOMA'S CAMPAIGN TO
TERMINATE THE UKB:  In 1990, in a desperate effort to prevent the Secretary
from extending to the UKB the full rights of a properly organize OIWA and IRA
tribal government, Ross O. Swimmer wrote a letter to Assistant Secretary
Brown. This letter concluded that the UKB should not be recognized at all,
because the UKB Base Roll was the not BIA-approved 1949 UKB Base Roll, not
the 1907 Cherokee Dawes Commission Roll, because Principal Chief W. W. Keeler
had the UKB reorganized to suit his own purposes, because the UKB was only
intended to be a loan association, and because the UKB, though federally-
chartered under Section 3 of the OIWA, was always trying to ride the
coattails of the Nighthawk Keetoowahs in order to establish a tribal
identity. Swimmer's claims became the core of the case against the UKB
thereafter in litigation and in hearings. The CNO had terminated a tribe by
creating a new mythology.
     The premise upon which Assistant Secretary Forrest Gerard relied in
penning the 16 January 1980 Letter barring separate funding for the United
Keetoowah Band was the same one upon which Congress relied in declaring the
United Keetoowah Band ineligible for separate funding and land acquisition in
Oklahoma (at least for the purposes of the 101st Congress) within the former
boundaries of Cherokee Nation (in Amendment 86 to H. R. 101-116, the FY 1992
Interior Budget Appropriations Bill). That defective premise was that
Cherokee Nation of Oklahoma and the United Keetoowah Band share the same Base
Roll.

               AN EXECUTIVE SUMMARY OF THE UKB'S STATUS

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

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


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

     The purpose of the following narrative is to lay to rest certain
popular misconceptions about the political identity of the Keetoowah
Indians who compose a recognized Indian tribe. The most damaging of
these misconceptions arose during the concerted, well-financed campaign
by the Cherokee Nation of Oklahoma and the Department of the Interior to
falsify the record of the UKB's existence and organization to accomplish
the Band's termination. That campaign started on or about 27 April 1979.
The UKB hopes that Congress, Indian nations and voters will learn from
this account how the involuntary termination of tribal existence still
is possible.
                                 * * *
     After 1968, Congress took steps to halt or reverse the unilateral
administrative and legislative termination of tribes. P.L. 100-297,
Title 25 U. S. C. Section 2502 (April 28, 1988), formally rescinded P.
L. 83-108 as a statement of the "sense of Congress," at least for the
purposes of the 100th Congress. Congress declared that there shall be no
unilateral termination of any federally-recognized tribe. See
legislative history at 1988 U. S. Code Congressional and Administrative
News, p. 101. Termination still happens, through third-party challenges
to the tribal status of tribes that are recognized. Aggressive lobbying,
litigation, and defamation are effective tools for competing governments
and business interests who find any particular tribe's inherent powers
and rightful property claims to be inconvenient. The UKB example
provides an important case study of the continuing termination process.
     This narrative begins at what could be the end. The effect of an
obscure amendment to the FY 1992 Interior budget was to declare the Band
ineligible for separate services or Federal trust land acquisition, and
therefore effectively terminated as a sovereign. The legislative history
of Amendment 86 is illustrative of the UKB's interactions with the U. S.
Congress, the BIA, Cherokee Nation of Oklahoma, and the State of
Oklahoma since 1979.
     Knowing well that the purpose of a $100,000 line item in the FY 92
Interior budget was to allow the UKB to maintain a current distinct
Tribal Roll, Cherokee Nation of Oklahoma intervened to prevent the
funding allocation. Congressman Mike Synar's testimony against the UKB
during the hearings on FY 1992 Interior appropriations quoted from what
he said was a BIA assessment of the UKB's performance under its 1984 P.
L. 93-638 grant to update the UKB Roll. At the hearing, Chairman Les
Aucoin clearly viewed this quote as the single most important charge
against the UKB. At the appropriations hearing, BIA witnesses verified
that the statement was an authentic quote from a 1980 BIA report.
     No one at the hearing, no member of Congress, no staff member ever
read the alleged quote carefully enough to notice the date of the
alleged BIA "determination." No one at the hearing read from or cited
the 1984 grant approval letter from the BIA to the UKB informing the
Band of the award and its terms. No one cited the UKB's 1986 Final
Report or read from the Band's cover letter. No one invited the UKB to
respond, or listened when the UKB learned about the hearing and
attempted to respond to the accusations of Congressman Synar and CNO. No
member of Congress ever has asked whether it was physically impossible
for there to be a 1980 BIA negative assessment of the Band's performance
on a project which did not exist until 1984, and which the Band
completed in 1986. The UKB Tribal Council's Final Report to the BIA on
their 1984 P. L. 93-638 grant accompanied an approved and updated roll.
That roll was verified by the BIA Muskogee Area Office for use as
evidence in Cordelia Tyner, a/k/a/ Cordelia Tyner Washington, and the
United Keetoowah Band of Cherokee Indians v. State of Oklahoma, ex re.,
David Moss, District Attorney and David Moss, individually; M. Denise
Graham, individually, No. 87-2797, U. S. D. C., N. D., Oklahoma (1987),
when the State of Oklahoma demanded that the UKB produce a current
approved Tribal Roll. Contrary to post-1979 accounts by CNO, the UKB
Base Roll was and still is the BIA-approved 1949 UKB Base Roll, not the
1907 Cherokee Dawes Commission Roll. A comparison of the grant letter
and the UKB's Final Report proves that Congressman Synar's 1991
allegations against the UKB were false.
     It is impossible to write a valid program evaluation four years
before a project starts and six years before it ends. If the BIA was
prescient enough in 1980 to forsee the UKB would fail to perform on its
1984 grant contract by 1986 and issue a report in 1980 making that
finding, why did the Assistant Secretary grant the award in the first
place?  If the new Congress is incapable of rescinding Amendment 86, no
Indian sovereign is safe.
                                 * * *
     Another charge against the UKB dating to 1979 is that it is a
splinter group of the Nighthawk Keetoowah religious organization, or
alternatively, that it is a bogus organization wrongfully claiming a
political identity and affiliation with the Nighthawk Keetoowahs. The
UKB never identified itself with the Nighthawk cult. Most original UKB
members belonged to Protestant denominations, and most of the Chiefs
have been fundamentalist preachers or church leaders; that is the plain
truth.
     Chadwick Smith, a Cherokee affiliated with Cherokee Nation and
enrolled with the UKB, has been an employee of Cherokee Nation since the
1970s. While he serves as legal counsel for CNO and as a judge in CNO's
magistrate court system, he also represents the Nighthawk Keetoowahs
regarding their false claim that the UKB is a splinter group of the
"Nighthawk" Keetoowah Society, created at some unknown date between 1905
and 27 April 1979 (the date when Ross O. Swimmer's claims against UKB's
status emerged). Chadwick Smith leads a group of "Reformed Keetoowahs"
dedicated to neutralizing UKB political activity, by termination if
possible. Ironically, Chadwick Smith is a grandson of Rachel Quinton, a
faithful UKB Council representive for the Canadian District, as well as
Secretary and Clerk during the 1950s, 1960s and 1970s, who never saw the
UKB as a creature of CNO. Throughout most of her later years, Secretary
Rachel Quinton unsuccessfully promoted reconciliation between Stokes
Smith, the Chief of the Nighthawk contingent in her day, and the UKB
Council, hoping that Stokes Smith's would encourage his followers to
join the UKB. Mr. Smith's personal crusade against the UKB repudiates
his membership in the UKB, and dishonors the memory of his own
grandmother.
     Federal records and official accounts attest that the Nighthawk
Keetoowah Society broke away from the old Keetoowah Society about 1905
as a result of a disagreement regarding the political future of the
community. The history of the "Nighthawks" as a secretive religious cult
in the strict anthropological sense is well-established in scholarly
writings. Today, the two main opposing factions of Keetoowah Nighthawks
at Stokes Smiths Grounds and at Redbird Smith's Grounds still claim
(separately, and in opposition to each other and the rest of the world)
to be the arch-conservative bastion of Cherokee tradition. The
Nighthawks generally have barred members from affiliation in any other
political, religious or social organizations. The Nighthawks' "non-
political" religious organizations shunned most christian influences as
a doctrinal matter, though Redbird Smith himself venerated Christ at the
end of his life. Therefore, it is most interesting to find that in 1991,
the Nighthawk Keetoowahs at Stokes Smith's Grounds reversed a policy of
over 80 years' standing to attack the political status of the UKB,
adopting a new agenda that suited Chad Smith's professional aspirations
quite well. Chad Smith, his father and certain cronies have used their
dual affiliation with CNO and the UKB to mount a widely-advertised
campaign to terminate the UKB from within.
     The Keetoowah Society, Inc., incorporated on 20 September 1905, and
worked to keep the Keetoowah factions united. The Corporation led the
struggle for the right of the UKB to reorganize, but its long-time
leaders lost credibility and following to the UKB after 1939. By 1950,
most members of the various Keetoowah factions had joined the UKB, even
though the leaders of these factions never officially resolved their
philosophical differences. While the Nighthawk Keetoowahs recorded under
900 current members (and the membership at the two remaining, opposing
grounds has continued gradually to decline), the official UKB enrollment
was around 1,500 in 1939, and grew to over 3,000 by the time of the IRA
election in 1950. The UKB has a resident Oklahoma service population of
4,700, of whom about 4,000 hold exclusive UKB membership. The weak basis
for the "Nighthawk" legend appears below in a detailed chronology and
analysis of events leading to the acknowledgment of the UKB in 1946 as
a federally-recognized tribe entirely distinct from the Nighthawk
organization or from Cherokee Nation.
                                 * * *
     On 27 April 1979, Ross O. Swimmer claimed that the UKB was created
as a Section 4 loan association under OIWA, only to enable individual
Cherokees to obtain personal loans. UKB was never intended to be a mere
OIWA loan association. The UKB was federally-chartered under Section 3
(not Section 4) of the OIWA, and never received any OIWA loans, because
the BIA refused to allow them to participate in the program, even after
the rule changes made them eligible, as a Section 3 chartered Tribe.
     Ross O. Swimmer later claimed (8 May 1990) that Principal Chief W.
W. Keeler personally arranged the acknowledgent and reorganization of
the UKB after 1950 in order to assure that Cherokee interests would be
represented in Federal claims actions. While Swimmer's 8 May 1990 claim
is false in stating that Keeler had any significant role in the 1946 Act
or the UKB reorganization, it supports the theory that the UKB is
entitled to standing as a party in any claims actions regarding the
trust assets of the old Cherokee Nation. As the records demonstrate,
neither Principal Chief W. W. Keeler, nor his immediate predecessor
Jesse B. Milam, had any role except as bemused bystanders in UKB's
reorganization. We have found no evidence that Keeler knew what a
Keetoowah was until he was appointed to Cherokee Nation Executive
Committee on 30 July 1948, months before he succeeded Milam.
     Swimmer's fallback position was that the UKB never properly
reorganized under OIWA and IRA, notwithstanding the 1946 congressional
recognition of the Band's eligibility to reorganize, due to a 1937
Solicitor's Opinion by Frederic L. Kirgis. In Keetoowah -- Organization
as a Band Kirgis determined the Keetoowah Society, Inc., was ineligible
under OIWA and IRA to reorganize as an Indian tribe. Swimmer was silent
regarding the written findings of the Five Civilized Tribes Agency
Organization Field Agents (Ben Dwight and A. A. Exendine) and of their
Regional Coordinator, A. C. Monahan (between June 1939 and 1946).
Swimmer seemed conveniently ignorant of the documented BIA organization
field work with the UKB after 1937, and the legislative history of the
1946 Keetoowah Indians Act. In debunking Swimmer's follies, this
narrative reviews the entire documented history of the UKB's
reorganization under the OIWA and the IRA. The narrative describes the
Band's near eradictation between 1979 and 1992 due to administrative
termination and legislative logrolling. The narrative concludes with a
brief discussion of measures the UKB is undertaking to survive.
                                 * * *
     This story of the near-termination of the UKB begins with an
account of the Band's formal congressional recognition. The 1937
Keetoowah Society, Inc., Opinion lost all significance in the
congressional acknowledgment of the UKB. Congress knew all about the
Opinion, and agreed with the policy basis, but disagreed with the fact-
finding and conclusions. The 1937 Kirgis Opinion relied on the
understanding that the various Keetoowah factions that had broken away
since 1900 had never formed a coalition government. He ignored the
significant point that, though the Keetoowah Society, Inc., had lost
much of its right to claim dominion over all Keetoowah Indians due to
factionalism, the Keetoowah Society had obtained a Federal Charter from
a territorial court in Tahlequah on 20 September 1905, recognizing it as
a polity of Indians. The Keetoowah Indians already had been federally-
acknowledged as a political entity, a tribe.
     CNO claims that the 1946 Keetoowah Act was somehow an error, but
the legislative history behind the 1946 Keetoowah Act shows the UKB's
recognition was no fluke. In endorsing the bill, Acting Secretary of the
Interior Abe Fortas relied on ten years of BIA organization work,
finding that it was possible for the majority of Keetoowah Cherokees to
unite to form a coalition government by consensus, even if it meant
abandoning their own factions, including the Keetoowah Society, Inc.,
itself. U. S. Congress recognized the United Keetoowah Band of Cherokee
Indians in Oklahoma (UKB) as a Tribe of Indians residing in Oklahoma
under the Act of August 10, 1946 (60 Stat. 976). The Band subsequently
incorporated under Section 3 of the Oklahoma Indian Welfare Act of June
26, 1936 (46 Stat. 1967), the OIWA. The Secretary of the Department of
the Interior approved the Band's election (October 3, 1950) to ratify
the amendments to the UKB Tribal Constitution and Bylaws, and to adopt
a Corporate Charter under the OIWA. The UKB remains an autonomous,
distinct, federally-recognized tribal entity. The UKB has reserved to
itself all the rights and privileges secured to organized tribes under
Section 3 of the Indian Reorganization Act.
     CNO also claimed in statements to the BIA (1990 - 1991) that,
regardless of the 1946 Act, the reorganization of the UKB was
fundamentally defective or never completed, and that therefore the Band
should never be recognized. BIA representatives adopted this line in
discussions with Keetoowah representatives visiting in Washington, D.
C., in 1991, claiming that they simply could not locate signed copies of
the UKB Charter, Constitution or By-laws, or proof that the 3 October
1950 Federal election ever had happened. The UKB's findings in Federal
archival holdings in 1990 and 1991 proved not only that these documents
existed, but that BIA staff had made no reasonable effort to look for
them, or simply were lying.
     On 27 April 1979, Ross O. Swimmer also claimed that the UKB never
had conducted any governmental or community functions as a Tribe, and
that it had abandoned tribal relations voluntarily at some undefined
time between 1969 and 1979. The inclusion of the UKB's name on the
Interior Secretary's 6 February 1979 Federal Register listing of
federally-recognized tribes, therefore, was a fluke. Swimmer did not
bother to check departmental determinations on the UKB's status during
the 1970s, or request documentation of continuing tribal relations;
Swimmer simply undertook systematic efforts to void the status of the
UKB. In separate letters dated 27 April and 30 April 1979, Swimmer asked
Congress to exercise its authority under Section 8 of the UKB Charter to
nullify the Charter. However, the Department concluded that Congress
also would have to void the UKB Constitution to complete the
transaction, and that spelled TERMINATION. TERMINATION was not a popular
word any more.
     Thereafter, Swimmer made the termination of the UKB a personal
crusade. These efforts are a primer for third party challenges of tribal
status throughout the United States. U. S. Secretaries of Interior and
Assistant Secretaries of the Interior for Indian Affairs from Gerard to
Swimmer ignored the congressional mandate respecting the sovereign
rights and entitlements of the UKB. While he was Assistant Secretary
from September 1985 to January 1989, Swimmer used his office to
promulgate a series of negative determinations against the UKB.
Afterwards, Swimmer freely cited decisions of his own administration as
authority in lobbying his successor, Dr. Eddie Frank Brown. Although the
CNO successfully blocked all Federal funding, services, and trust land
acquisition for the Band while Brown was in, the BIA never altered its
basic position, consistent with the 1946 intent of Congress, that the
UKB enjoys a government-to-government relationship with the United
States. See Letter, 10 July 1989 Decision, Acting Superintendent Cecil
Shipp, Tahlequah Agency, BIA, "TO WHOM IT MAY CONCERN," verifying the
"Federal recognition of the United Keetoowah Band of Cherokees of
Oklahoma as a federally recognized tribal entity;" also, Letter, 24 July
1992 Decision, Area Tribal Operations Officer Rosella C. Garbow TO WHOM
IT MAY CONCERN, certifying and authenticating the UKB's Roll; and
Letter, 24 August 1992 Decision, Acting Assistant Secretary Ronald Eden
to Chief John Ross, UKB, confirming that the UKB is an autonomous fully
federally-recognized Tribe, eligible for separate services and land
acquisition, but for Amendment 86 of P. L. 101-116, 2nd Sess., 1991. CNO
failed to challenge these determinations in any way under the APA.
     In a Letter dated 10 November 1989, Senator Daniel K. Inouye,
Chairman of the Senate Committee on Indian Affairs, to John Ross, then
Treasurer of the UKB, Senator Inouye assured the UKB:
          Your status as a recognized tribe is not in question. However,
     the decision of the BIA in 1980 to designate the Cherokee Nation as
     the recipient of 638 grants and contracts, to the exclusion of your
     tribe, is now being reviewed. It is certainly my hope that the
     review will be favorable to the right of the United Keetoowah Band
     to contract for its own programs and services.
In United Keetoowah Band - Cherokee Nation, 30 October 1990, a
memorandum from Dr. Eddie Frank Brown to the Solicitor of the Department
of the Interior, Brown covered the Department's position paper on the
UKB issue. The Assistant Secretary concluded, "the United Keetoowah Band
has been recognized as a tribe since 1950, and we do not want to
withdraw that recognition. Absent Congressional action, we do not have
the authority to do so." The memorandum substantiated the sovereign
claims of the UKB from 1939 to the present, except that he had failed
altogether to review the record and determinations of the BIA and the
Band proving that the UKB has a distinct, 1949 Base Roll and separate
membership criteria from CNO. Referring to the OIWA, the Position Paper
recalled:
     The OIWA allows "the Indians of Oklahoma to exercise substantially
     the same rights and privileges as those granted to Indians outside
     of Oklahoma by the IRA." H. R. Report No. 2408, at 3. Thus, the
     Indian governments that reorganized under Section 3 of the OIWA are
     of the same legal and independent character as those non-Oklahoma
     Indian tribes that reorganized pursuant to Section 16 of the IRA
     (25 U. S. C. Section 476).
The equities here are not on the side of the U. S., Oklahoma or CNO. The
UKB, as a matter of Federal-Indian law, is a government organized under
OIWA and IRA since 1950. The UKB is in no sense subordinate to the CNO.
The UKB Charter and Constitution are senior to the 1975 CNO Constitution
(CNCA), which is not a proper organic document under OIWA and IRA. CNO
has had the opportunity to accept funds and contract out programs under
P. L. 93-638 to the exclusion of the UKB, allegedly on behalf of and for
the benefit of the UKB, and now is participating in Self-Governance
agreements with the U. S., purporting to represent the interests of the
UKB. CNO is incompetent to represent the interests of the UKB, lacks
sovereign interests over the affairs of the UKB, and has had no formal
intersovereign relationship the UKB since 4 March 1906. To test these
statements, one needs only to review the status and history of Cherokee
Nation since at least 1898.
                                *  *  *
     Notwithstanding the Agreement with the Cherokee Nation, April 1,
1900, which declared the intent of Congress that the governments of the
Five Civilized Tribes would expire in 1906; and notwithstanding other
statutes that pared away particular governmental functions of Cherokee
Nation and the other four Nations in the meantime; the 1906 Act
nonetheless preserved certain residual, primarily executive powers of
the Five Tribes' governments, while restoring none of the terminated
functions, or the revoked Constitutions. Under the OIWA (1936), any
Oklahoma tribe theoretically could form a council, adopt a constitution,
by-laws, and charter with secretarial approval, and reorganize under the
IRA, just as tribes in other states could. However, in a Memorandum to
the Indian Organization Division regarding the eligibility of Cherokee
Nation in particular to avail itself of the benefits of the OIWA, the
Director of Lands of the Department of the Interior determined on 25
October 1937 (File #163618), that:
          It is not believed that the Oklahoma Welfare Act may be used
     as authority to reorganize the existing tribal government of the
     Cherokee Nation. On the contrary, the Act appears to contemplate
     the creation of a new, separate and distinct organization, to adopt
     its own constitution and bylaws and to procure a charter of
     incorporation without regard to the existing government.
          It is believed that the powers and jurisdiction of the new
     organization should be limited to the property and other benefits
     to be acquired under the Act. Those persons whose names are on the
     final rolls of the Cherokee Nation have certain rights in the
     remaining assets of the tribe, and if any attempts were made to
     deny them the right to vote on matters that may affect such rights,
     it would doubtless give rise to litigation.
CNO claims all the benefits and advantages of OIWA and IRA
reorganization, with none of the burdens or responsibilities. CNO claims
to be full and exclusive successor to the powers and assets of the Old
Cherokee Nation, with the right to discriminate among classes of
descendants with impunity. CNO claims title to all the IRA purchases for
a Cherokee tribe organized in Oklahoma under OIWA and IRA, although the
only such tribe is the UKB. No Act of Congress, judicial determination
or administrative decision ever has contradicted or reversed the 25
October 1937 determination expressly.
                                *  *  *
     The Act of Oct. 22, 1970, 91st Cong., 2nd Sess., P. L. 91-495, 84
Stat. 1091, the "Bellmon Bill," "Authorizing Each of the Five Civilized
Tribes of Oklahoma to Select Their Principal Officer, and for Other
Purposes," exemplified efforts to overrule the BIA's interpretation of
the 1906 Five Tribes Act, under which the U. S. appointed the Principal
Chiefs. The Act restored the Cherokee Dawes enrollees' and descendants'
right to select leaders, but did not revive suspended powers which
earlier legislation had dissolved, suspended, or conditioned. While
restoring the opportunity to exercise certain inherent rights of
sovereignty, the Bellmon Bill extended to the Cherokee Nation no
exemptions from the procedural requirements for organization under the
OIWA.
     In 1971, Cherokee Nation reelected Principal Chief W. W. Keeler in
an informal national plebiscite. In Harjo v. Kleppe, 420 F. Supp 1110
(D.D.C. 1972), aff'd. sub nom. Harjo v. Andrus, 581 F.2d 949 (D.C.Cir.
1978), the U. S. Supreme Court determined that the Curtis and Dawes
legislation had preserved the governments of the Five Tribes to the
extent Congress had not limited their powers. OIWA, IRA, and later
legislation made it possible for some of the Five Tribes to organize new
governments in the 1970s and regain aspects of their sovereignty that
earlier congressional Acts had restricted or eliminated. However,
eligibility to reorganize is not the same as reorganization;
reorganization, as the UKB can attest, can be an excruciatingly
demanding process.
     As a matter of administrative convenience, the Secretary of the
Department of the Interior and Congress condoned the unconventional
quasi-reorganization of the CNO that followed the last term of Principal
Chief W. W. Keeler (1971-1975). As the Cherokee Nation drafted a
Constitution, the CNO properly relied on Harjo in concluding that CNO
indeed had retained aspects of inherent sovereignty through the years;
however, their analysis did not consider the problem of the erosion of
Cherokee Nation's sovereignty through congressional and administrative
acts which still had its effects on Cherokee Nation, leaving intact only
unaffected aspects of inherent sovereignty. Commissioner of Indian
Affairs Morris Thompson approved the Constitution for referendum on 5
September 1975, as "seconded by Principal Chief of the Cherokee Nation,
Ross O. Swimmer" on 2 October 1975. Voters approved the Constitution the
next year in a tribal election, not a secretarially-supervised Federal
election in a manner comporting with Federal regulations governing the
conduct of OIWA and IRA elections (now at 25 C. F. R. Section 81).
Article I of the CNO Constitution, "Federal Regulations," stipulates
that:
     . . . [T]he Cherokee Nation shall never enact any law which is in
     conflict with any Federal law.
Objectively speaking, the content and structure of the CNO Constitution
itself flagrantly violated Federal law regarding reorganization of
Oklahoma tribes, if reorganization under OIWA was the intent of the
framers. However, Article I of the CNO Constitution, "Federal
Regulations," also stipulates that:
     The Cherokee Nation is an inseparable part of the Federal Union.
     The Constitution of the United States is the Supreme law of the
     land; . . . [Emphasis added]
This language leads one to conclude that the CNO depends for its primary
source of Constitutional, sovereign authority on the sovereign power of
the United States, under the U. S. Constitution, and secondarily on the
residual inherent powers remaining to the CNO since 1906, to the extent
that Congress has restored those powers since the Agreement with the
Cherokee Nation, 1 April 1900. Since CNO has not availed itself of the
opportunity to reorganize under OIWA and IRA, the form of organization
under which the Tribe now operates requires only secretarial condonation
of the actions of a Principal Chief, whom CNO voters now select and may
remove from office, operating under a governmental form of
administrative convenience. The 1975 CNO Constitution, then, is a means
for CNO to conduct business as other tribes do, while leaving the 1906
status quo of Federal management of, and authority over, Cherokee Nation
affairs essentially intact. This means that, though selected by voters,
the Principal Chief of Cherokee Nation is essentially a colonial Viceroy
subject to the will of the U. S. Executive Branch. CNO's Constitution,
at "Article XVIII. Adoption" stipulates that:
     This Constitution shall become effective when approved by the
     President of the United States or his authorized representative and
     when ratified by the qualified voters of the Cherokee Nation at an
     election conducted pursuant to rules and regulations promulgated by
     the Principal Chief.
The legal effect of this Article depends entirely on precisely the same
presidential or secretarial deputization of the Cherokee Nation
Principal Chief, and approval of the Principal Chief's actions, that
Congress contemplated in the 1906 Act. The 1975 CNO Constitution
purported to supersede the 6 September 1839 Cherokee Nation Constitution
(CNCA, "Article XVI. Supersedes Old Constitution 1839," stating, "The
provisions of this Constitution overrule and supersede the provisions of
the Cherokee Nation Constitution enacted the 6th day of September
1839.") This simply reflects the common understanding that since the old
Constitution was a dead letter in 1906, any new approved Constitution
supersedes the old.
     Every other Oklahoma tribe that organized under OIWA and IRA had to
obtain secretarial approval of a Constitution, then secretarial approval
of an OIWA draft charter. Thirty percent of the qualified voters were
then supposed to ratify a Constitution, and then the Charter, in
separate sequential Federal elections. By law, the Charters (not the
Constitutions) of OIWA/IRA organized Oklahoma Indian tribes delineate
most of the powers of such tribes. CNCA, the annotated Code of Cherokee
Nation of Oklahoma, contains the 1975 Constitution, code, treaties,
agreements, and Self-Determination legislation, and even the 24 January
1983 speech of President Reagan on Indian Policy, but one searches in
vain for any mention of the Oklahoma Indian Welfare Act or the Indian
Reorganization Act because the CNO Constitution evolved largely outside
the body of modern Federal-Indian law which is mandatory for other
Oklahoma tribes, including the UKB. Despite occasional explorations of
the possibility of reorganizing, Cherokee Nation of Oklahoma never has
proposed or received an OIWA Charter from the Secretary of the Interior,
or submitted its approved Constitution to a secretarially-supervised
election as the OIWA, 25 C. F. R. 81, and 25 U. S. C. 476/479 of the IRA
require.
     In contrast, in helping to draft the UKB Charter of 1950, the BIA
ordered the UKB to design the document so that the UKB itself could
extend such a Charter to an organization composing the non-Keetoowah
Dawes enrollees of Cherokee Nation. Oddly enough, until the UKB alters
its Constitution to make 1/4 Cherokee blood quantum mandatory for future
members under the proposed Amendments, the Cherokee Dawes Roll
descendency group composing the population of Cherokee Nation of
Oklahoma still has the right, in theory, to apply for reorganization
under UKB jurisdiction, with the consent of the UKB Council. Of course,
to date, the Cherokee Nation of Oklahoma never has sought an OIWA
charter through the UKB. In 1950, the Secretary declared, in approving
the UKB Charter, Constitution and By-laws, that "All officers and
employees of the Interior Department are ordered to abide by the
provisions of the said [UKB] Constitution and By-laws." [Letter, 9 May
1950, William E. Warne, Assistant Secretary, approving the Constitution
and By-laws. *: IV] Recall that the CNO Constitution, Article I,
"Federal Regulations," stipulates:
     [T]he Cherokee Nation shall never enact any law which is in
     conflict with any Federal law.(Cherokee Nation of Oklahoma
     Constitution, CNCA, 2 October 1975)
Cherokee Nation's laws attacking the sovereign rights of the UKB plainly
violate Federal law. Neither Congress nor the BIA appear to care.
     If the Constitution of Cherokee Nation of Oklahoma has any legal
effect, then the actions of CNO toward the UKB since 1975 which
contradict the organic documents or laws of UKB are entirely ultra
vires. CNO refuses to recognize the existence of the UKB, while claiming
that the UKB and its members are citizens and subjects of CNO. The
Keetoowah Band, which now is the UKB, remained when the Old Cherokee
Nation Constitution was revoked in 1906. The Cherokee Nation's claims of
jurisdiction over the UKB died with the old organization, though the
Cherokee Nation or Tribe continued to exist for certain purposes as the
1906 Act provides.
     The reorganization of the UKB under OIWA and IRA affirmed
conclusively the separate sovereign interests and identity of the UKB.
(Recall that Article XVI of the 1975 CNO Constitution expressly
overruled and superseded "the provisions of the Cherokee Nation
Constitution enacted the 6th day of September 1839.") Nothing in the CNO
Constitution expressly recognizes the UKB or its members or entitles
them to membership or registration in CNO. In contrast, while
recognizing the Delaware Tribe as a part of CNO which is allowed
separate organization under CNO subject to CNO authority, CNO bars the
Delaware Tribe from undertaking any actions contradicting the authority
of CNO  (Cherokee Nation of Oklahoma Constitution, CNCA, 2 October 1975)
     Congress has restored certain powers to CNO since 1937, thereby
making it easier for CNO to function without reorganizing the Cherokee
Tribe under an OIWA/IRA government. The BIA and Congress have limited
the effects of pre-1096 legislation on the Cherokee Nation in ways that
have allowed CNO to exercise aspects of sovereignty that Congress had
diminished or restricted in 1906, including aspects of criminal and
civil jurisdiction. In 1991 (proving that despite all the self-righteous
cant to the contrary, Lobbying is all), Congress extended permission in
Amendment 86 to P. L. 101-116 for CNO to undermine the property and
governmental rights of the UKB. The impact on UKB and its members has
been dangerously discriminatory. The effect is the confiscation of a
vested property right without due process.
                                 * * *
     The bar against UKB's eligibility for any Federal funding,
including funds from the Administration for Native Americans, may be
permanent. At the same time that the BIA conceded the Band's existence
as an autonomous entity (24 August 1992), the BIA also acknowledged the
Band's eligibility to receive land in trust. From then on, the CNO
undertook a campaign with the support of the Oklahoma delegation to
assure that the UKB will have no opportunity to acquire land in trust in
any other state. On 26 January 1993, Principal Chief Wilma Mankiller of
Cherokee Nation of Oklahoma included the UKB in a list of some 40
unrecognized petitioning groups claiming Cherokee extraction in an
advisory letter to governors in their respective states, although the
name of the UKB appears on the Federal Register listing of recognized
tribes. The official excuse from CNO spokesperson Mr. Lee Fleming for
this flagrant misrepresentation was that the letter was intended "for
information" only, and therefore, CNO could not be held responsible. To
the contrary, Chief Mankiller's shield is sovereign immunity, since her
letter purported to be an official intergovernmental communication. The
UKB has received no gesture of apology or retraction for this "error,"
and shall receive none. The actions of CNO require the approval of the
Secretary; therefore, these calculated attacks have the official
authorization of the Secretary.
     Cherokee Nation of Oklahoma, ever confident that political pressure
eventually will lead to the congressional revocation of the UKB Charter
or to a requirement that the UKB submit to the acknowledgment process at
25 CFR 83, already have characterized the UKB in deliberately fraudulent
public statements as a petitioner for acknowledgment. In a determination
published in the body of the Proposed Rule Regarding Department of
Interior Policy on Recognition of Indian Tribes, Vol. 56, No. 161,
Federal Register 47320 (Sept. 18, 1991), the Secretary finally declared
that when any third party attacks the status of a federally-recognized
tribe, the Department will protect only tribes who have survived the 25
CFR 83 process; any other tribe's only recourse is to use the Federal
acknowledgment process to vindicate itself. CNO has tried and failed
repeatedly to force the UKB to submit to the tests of the acknowledgment
process to eliminate the Band. At this point, the UKB, though a
recognized tribe, is ineligible even to apply for funds for status
clarification from the Administration for Native Americans for which
unrecognized tribes are eligible due to CNO's intervention. The UKB's
status problems stem entirely from the perception that the UKB competes
with CNO, and from the false perception that both share the identically
same population; ironically, that competitive atmosphere emanated
directly from CNO's decision to eliminate the UKB.

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

     In 1990 and 1991, Principal Chief Wilma P. Mankiller demanded of
the BIA and Congress that the UKB be compelled against their own will
and best interests to submit to the Federal acknowledgment process to
prove their status as a tribe. Initially, she demanded congressional
hearings that would compel the Band to produce, in effect, a complete
documented petition seeking acknowledgment. Having achieved the de-facto
termination of the Band in the passage of Amendment 86 to P. L. 101-116,
she did an about-face, claimed in a letter to the appropriate
congressional leaders and committees that neither CNO nor the UKB wanted
a hearing on the matter in spring of 1992 in Tahlequah, and that Chief
John Ross had agreed to send a similar request. Chief Ross never made
such an agreement and never sent any such letter.
     The narrative and bibliographies below will address the criteria
for acknowledgment in 25 CFR 83.7 that require the Band to prove that
it:
     (a) [Has been i]dentified from historical times until the present
     on a substantially continuous basis, as "American Indian," or
     "Aboriginal;"(b) [Is a Tribe, a substantial portion of which
     inhabits] a specific area or [lives] as a community viewed as
     American Indian and distinct from other populations in the area and
     [prove that its] members are descendants of an Indian tribe which
     historically inhabited a specific area;
     (c) Has maintained tribal political influence or other authority
     over its members as an autonomous entity throughout history until
     the present;
     (d) Provides a copy of a governing document or statement describing
     in full the membership criteria and procedures through which the
     group currently governs its affairs and its members;
     (e) Has membership consisting of individuals who have established
     descendancy from a tribe which existed historically or from
     historical tribes which combined and functioned as a single
     autonomous entity;
     (f) Has membership composed principally of persons who are not
     members of any other tribe; and,
     (g) Is not expressly terminated or otherwise forbidden to
     participate in the federal-Indian relationship by statute.
The Band has met criterion 25 CFR 83.7, in that the Band has provided on
many occasions to all interested parties and the public:
     (d) . . . a copy of a governing document or statement describing in
     full the membership criteria and procedures through which the group
     currently governs its affairs and its members," consisting of a 3
     October 1950 Charter, a 3 October 1950 Constitution and By-laws,
     over 50 years of resolutions, ordinances and statutes, a 1949 Base
     Roll as amended in 1985, and continuing enrollment updates between
     1949 and the present.
     Other membership-related criteria of 25 CFR 83.7 require the Band
to show that it:
     (e) "Has membership consisting of individuals who have established
     descendancy from a tribe which existed historically or from
     historical tribes which combined and functioned as a single
     autonomous entity;" namely, the Keetoowah Band of Indians of the
     Cherokee Tribe; and,
     (f) "Has membership composed principally of persons who are not
     members of any other tribe."
The narrative will address criterion (g) later.
     United Keetoowah Band of Cherokee Indians in Oklahoma meets the
criteria the Acknowledgment and Research Branch of the BIA uses for
determining existence an Indian Tribe (25 C.F.R. 83.1-11, redesignated
1985). The following section applies historical Federal, tribal and
other records to demonstrate that the Band can satisfy the requirements
of 25 Code of Federal Regulations Sec. 83. 7 (a) - (g). Bibliographical
citations are in the full narrative and appendices. Below appears a
summary of the accompanying narrative, establishing the evidence
supporting the Band's contention that it meets the following criteria
for acknowledgment in 25 CFR 83.7. The UKB will demonstrate that the
Band:
     (a) "[Has been i]dentified from historical times until the present
     on a substantially continuous basis, as 'American Indian,' or
     'Aboriginal,'" as cited in Federal, Territory, State, Tribal
     records and scholarly sources;
      (b) [Is a Tribe, a substantial portion of which inhabits] a
     specific area or [lives] as a community viewed as American Indian
     and distinct from other populations in the area and [prove that
     its] members are descendants of an Indian tribe which historically
     inhabited a specific area," as cited in Federal, Territory, State,
     Tribal records and scholarly sources; and,
     (c) "Has maintained tribal political influence or other authority
     over its members as an autonomous entity throughout history until
     the present," as cited in Federal, Territory, State, Tribal records
     and scholarly sources.
In the narrative, a note ("a", "b", and/or "c") follows each statement,
indicating which one or more of these criteria that particular statement
addresses. The Brief UKB Chronology covers the same basic points.
1.   At the old Mother Town of Keetoowah in Swain County and its
affiliated smaller towns, North Carolina, political succession continued
through elected Captains and a Chief (pre-contact until about 1833; a,
b, c).
2.   The Keetoowah Indians, despite great disruption of their culture
and political town structure between the American Revolution and the
Removal period, retained as much as they could of their primary rules
and ways, by enforcing traditional laws through customary sanctions and
the law of blood (a, c).
3.   Following their removal to Indian Territory with the Old Settlers
(mostly between 1805 and 1835; a, c) as well as Eastern Emigrants (1835-
1840; a, c), the Keetoowah Indians reorganized under a Constitution in
1858 in Oklahoma, drawing in Keetoowah adherents from all nine
Districts, but primarily from the region composing five northeastern
Oklahoma counties today (b).
4.   The Keetoowah Indians called their organization the Keetoowah
Society, and throughout the nine Districts, they worked to resume the
role the Mother Town of Keetoowah enjoyed in pre-contact and pre-Removal
historical times under the leadership of local headmen called "Captains"
and a Head Captain or "Chief" (a, b, c).
5.   As early as the Civil War, conflicts arose about the purposes and
directions of the organization, so that while some Keetoowahs wanted to
preserve the ancient Keetoowah culture, language and religion in pure
form as possible, others preferred to amalgamate the old ways with what
they wanted from non-Indian culture, including christian churches (a).
Indeed, the followers of the Jones family of church leaders were
instrumental in the reorganization of the Keetoowahs in the 1850s (a).
6.   In their efforts to preserve the Keetoowah group as a political
entity, some factions preferred a more militant role in opposing the
Southern Confederacy, particularly the so-called "Pin Indians;" but all
loyal Keetoowahs supported the Union (a, c).
7.   While the Keetoowah Indians remained loyal to the end of the Civil
War, they shared the common humiliation of all Cherokees resulting from
the punishment of Cherokee Nation for its official position of siding
with the Southern Confederacy (a, c).
8.   The Treaty of 1866 abrogated all earlier treaties to the extent
they were inconsistent with the 1866 Treaty. The Keetoowah delegates to
the Treaty convention very reluctantly signed (a, b, c).
9.   When congressional investigations led to the discovery of
widespread corruption in the Indian Service and the Five Tribes
governments, and when proponents of Oklahoma statehood pressed for
elimination of the original tribal governments, the Keetoowah Indians
had to make difficult decisions regarding the direction of the tribe (a,
c).
10.  While they intended to maintain a tribal government and functions
regardless of the fate of the Cherokee Nation as a whole, the Keetoowah
Society eventually acquiesced to the Agreement with the Cherokee Nation,
April 1, 1900, the Curtis Act and the 1906 Act, to the political
dissolution of the corrupt Cherokee government that the Keetoowahs
loathed anyway, and to the allotment in severalty of Cherokee lands (a,
b, c).
11.  When Cherokee Nation was dissolved, members of the Society lived
throughout most of the old Cherokee districts (but with small
constituencies in Cooweescoowee and Canadian Districts; a, b, c).
12.  Many Keetoowahs regarded the prospect of allotment of the Tribe's
lands in severalty as so calamitous that they withdrew from the
Keetoowah Society (a, b). Several hundred of these Keetoowah Indians
formed a number of secretive, traditionalist, exclusive factions as
early as 1893, including the Nighthawk Keetoowahs, that refused until
1910 or later to accept the work of the Dawes Commission (a, b). These
groups were clustered around Gore and Vian, in Sequoyah County.
13.  In 1905, knowing that the Cherokee Nation was about to dissolve for
useful purposes, the Keetoowah Society reorganized. Using a Federal
Corporate Charter from the Territorial District Court in Tahlequah, as
the Keetoowah Society, Inc., this faction attempted to function as a
polity composed of a Chief and Council (20 September 1905) for the
express purpose of carrying on the political and social functions of a
Band, but because it omitted opposing factions that arose after 1900,
never fully again represented the interests of the Keetoowah Indians as
a body (a, b, c).
14.  The other main faction, the Nighthawks, some of whose leaders now
erroneously claim the UKB is a splinter of their religious cult,
withdrew from political activity and barred its members from affiliation
with any other groups or entities, including christian churches (a, b,
c).
15.  As the number of tribal towns associated with the Nighthawks
dwindled between 21 in about 1900 to 3 in 1937, the remnants of the
"non-political" Nighthawk faction eventually split into a variety of
factions, including two ceremonial grounds run by factions of Redbird
Smith and his family, as well as the Goingsnake "Seven Clans" fire and
the Four Mothers Nation. Other Cherokee political factions of Keetoowahs
arose, partly due to concerns about potential claims, partly to organize
formally as a Tribe. These factions of Oklahoma Keetoowah Cherokees
pulled together a coalition from the northern 14 counties of Oklahoma
between 1920 and 1924 to elect a Chief (Levi Gritts), and an Executive
Council (a, b, c).
16.  During the 1930s, the Keetoowah factions, now without any support
from several dwindling groups of Nighthawk separatists, supported the
idea of reorganizing all the Keetoowah Cherokees in all the old clan
districts as a united Band. They hoped to avail themselves of the
benefits of the proposed Indian Reorganization Act. At a hearing in
Muskogee on 22 March 1934, Keetoowahs showed up in force to present John
Collier and his staff with a formal petition and letter of endorsement
for the Bill (a, b, c). Collier complemented the Keetoowah Band's
enthusiasm and understanding for reorganization in a variety of writings
and press releases. Felix Cohen, Associate Solicitor for the Department
of the Interior, carefully monitored their public, highly organized
efforts in support of IRA (a, c).
17.  The Land Division in the Department of the Interior concluded in
1934 that while the Cherokee Nation was neither interested in
reorganizing because most members had abandoned tribal relations, nor
even capable of doing so, the Keetoowah Indians were willing and
probably able to reorganize in Oklahoma with great success, if the
factions would only pull together (a, b, c).
18.  Though the participation of Oklahoma Indians in the IRA was not
possible until the Thomas Bill of 1936 enabled reorganization under IRA
through the OIWA, the Keetoowahs never lost sight of their goal, and the
Keetoowah Society, Inc., sought permission to represent the Keetoowah
Indians, including the various factions whose members refused to join
the Keetoowah Society, Inc. (a, b, c). This effort faltered briefly when
Associate Solicitor Frederick Kirgis issued his Keetoowah Society
Opinion in 1937, saying that the Society, standing alone, was only a
society of the Keetoowah Indians, not a Band  [Opinions of the Solicitor
of the Department of the Interior Relating to Indian Affairs: 1917-1974,
Vol. I (Washington, D. C.:  U. S. Department of the Interior, 1975), p.
774] (a, b, c).
19.  Undeterred, the Keetoowah Indians began working with the
Organization Field Agents through Five Tribes Agency after 1937. It was
only after the Kirgis Opinion that BIA's Five Civilized Tribes Regional
Organization Director A. C. Monahan learned that the Keetoowah Society,
Inc., was the source for all the other factions, and that the
Corporation had held a Federal Corporate Charter as a political entity
since 20 September 1905. Monahan ordered agents Dwight and Exendine to
aid the factions to reorganize. D'Arcy McNickle's determination of 24
April 1944 found the UKB was a historical tribe. Rather than merely ask
the Solicitor to rewrite the opinion, the Acting Secretary, Abe Fortas,
to request congressional action allowing the UKB to reorganize under
OIWA and IRA.
20.  The UKB adopted a Constitution and By-laws. They elected officers
between 1939 and 1946, seating a Chief, Reverend John Hitcher, and a
Council (a, b, c). Work among various factions united most Keetoowahs
(a, b, c).
21.  Some Five Civilized Tribes Agency employees hoped to use the Band
as a vehicle for restoring the Old Cherokee Nation, or at least for
reorganizing all the Cherokee Dawes Commission enrollees and their
descendants under OIWA and IRA, because the Director of Lands, Land
Division, Department of the Interior, already had decided that while the
Cherokee Nation was not terminated, any new organization of the Cherokee
Tribe would have to be an entirely new entity whose property rights
would stem from the OIWA and IRA.[(MEMO TO INDIAN ORGANIZATION, 25
October 1937, from Director of Lands (WDW) to Daiker, Indian
Organization (163618); see also Solicitor's Opinion, 1 October 1941, 1
Op. Sol. on Indian Affairs 1076 (U. S. D. I. 1979)]
22.  The Secretary determined that an organization of the Keetoowah
Band, made by reuniting the various Keetoowah factions who wanted to
participate, does not conflict with the residual government of the
Cherokee Nation. The latter was to retain its 1907 status, as a body
under a Principal Chief whom the President (later, the Secretary of the
Interior) appointed to carry out responsibilities regarding the
disposition of the assets of the Old Cherokee Nation (a, b, c).
23.  The UKB carried out its own governmental functions in Oklahoma as
a reorganized body, without interfering with the Cherokee Nation, its
Principal Chief or his functions, because the UKB interests in Cherokee-
related issues was entirely restricted to interests of the UKB
constituency. That constituency consisted primarily of restricted
Indians, non-Dawes enrollees, and other Keetoowahs who remained loyal to
the Keetoowah political ideals (a, b, c).
24.  So, the United Keetoowahs finally decided by 1942 to remain
exclusively a "Keetoowah" polity that would include only those of
Cherokee descent who met the membership requirements of the united Band
(a, b, c). On 24 April 1944, Assistant Commissioner D'Arcy McNickle
found that the UKB was a historical tribe, and meeting with BIA's Chief
Counsel on 5 June 1944, recommended that Congress pass legislation to
clarify the UKB's status and right to reorganize as a tribe under OIWA
and IRA.
25.  Since the UKB reorganization process could not begin until Congress
agreed to offer the UKB the opportunity to reorganize under OIWA and
IRA, Acting Secretary Abe Fortas, Congressman Stigler and Senator
Thomas, among others, supported the effort, and on 10 August 1946,
Congress did pass the Keetoowah Act as part of a package measure that
included a gift of land to the Cheyenne-Arapaho Tribe in Oklahoma. The
reorganization process took another four years (a, b).
26.  The UKB, incorporating all the factions of the Keetoowah Indians of
the Cherokee Tribe throughout the nine districts of the old Cherokee
Reservation, has reposed its secular governmental authority in the line
of democratically-elected Chiefs (also informally called, in the 1940s,
"Presidents") Executive Officers and Tribal Council under its OIWA
corporate Charter, Constitution and By-laws, since 3 October 1950 (a, b,
c).
27.  Between 3 October 1950 and 3 October 1960, while the Secretary
retained approval authority over the UKB according to the UKB organic
documents, the Secretary could have authorized the Principal Chief of
Cherokee Nation to act as the Secretary's agent in approving decisions
of the UKB; but the Secretary made no such delegation of authority to
Principal Chief Keeler. Any such delegation of authority would have
expired on 3 October 1950, according to the Department's own
determination (see Letter, 15 October 1961, from Assistant Chief Tribal
Operations Officer Pennington to Muskogee Area Director Virgil N.
Harrington, regarding Harrington's 7 August 1961 inquiry as to the
effect of Sections 5, 6 of the UKB's Charter on secretarial approval
authority after 3 October 1960). Finally, despite undocumented and
spurious claims to the contrary, archival sources demonstrate that the
Band has continued to survive and function as a tribal entity since
reorganization under one unified government, despite internal
factionalism characteristic of all governments (a, b, c).
28.  When the UKB Council attempted to establish tribal offices at
various sites, and when the UKB created an Enterprise Board and
attempted to engage in economic development ventures to serve its
members and finance advocacy activities within the fourteen northeastern
counties of Oklahoma, CNO consistently intervened and made off with the
opportunity or spoiled it whenever possible, rationalizing that a UKB
opportunity is a CNO opportunity. For example, the UKB attempted to
develop a bingo business at Roland, Oklahoma, and had arranged an
economic development plan and approached the BIA with a land acquisition
request, the BIA denied the request, and promptly handed the business
opportunity directly over to CNO. CNO easily obtained secretarial
approval of their Roland land acquisition request, and now runs Bingo
Outpost on the spot, while claiming that the UKB is unrecognized,
selling sovereignty, and only wants recognition to do gaming. When the
UKB established over a score of smokeshop operations throughout a three-
county region, CNO and the State cooperated to undermine and shut down
all the operations.(a, b, c)
29.  In 1987, in the course of intervening to take over the UKB's
opportunity to buy an abandoned horserace track in Rogers County called
Blue Ribbon Downs, CNO retained a law firm to investigate CNO's legal
status to determine whether it would be legally possible for CNO to
engage in a horserace track operation.(DeGeer and Bread, "Federal
Legislation Affecting Cherokee Nation," Memo to Gene Stipe, Stipe Law
Firm, McAlester, Oklahoma, 2 November 1987) This evaluation of the legal
status of Cherokee Nation of Oklahoma as of Fall 1987 surveyed or
contained:
     *    Overview of the history of the laws impacting the Five
     Civilized Tribes
     *    19 Treaties with the U. S. (and limitations imposed therein)
     *    Curtis Act of 1898
     *    1901 Cherokee Agreement
     *    Cherokee Constitution
     *    Jurisdictional Map
     *    Solicitor Opinions believed to be pertinent.
This analysis does not claim that CNO has reorganized under OIWA or IRA,
referring instead to the 1906 Cherokee Nation Constitution, as
superseded in the 1976 CNO Constitution, and the legal effect of various
Acts of Congress preserving or limiting CNO's sovereign authorities. The
memo describes limitations on the inherent sovereignty of the tribe that
congressional legislation has imposed since 1890, which only
reorganization under OIWA and IRA could remedy. The memo does not deal
with the relationship between the CNO and the UKB, doubtless because the
authors realized the CNO has no sovereign authority over the UKB. The
memo concluded that CNO's claims to inherent sovereignty are in doubt,
and the writers recommended that CNO comply with all state laws, as a
precaution, in any development venture.(a, b, c)
30.  In 1990, a group of Cherokee Nation of Oklahoma members called the
Reformed Keetoowah Party attempted to sweep out the UKB Council,
claiming that the UKB was a subsidiary of CNO and never had been
federally-recognized, and that the UKB was attempting to start a Civil
War in order to create a new tribe. An election contest and lawsuit
marred John Ross's succession to the office of Chief. In November 1990,
at the urging of Principal Chief Wilma Mankiller, the BIA's Area Office
directed staff to review files at the UKB Enrollment Office and compile
a list of UKB members who never had registered voluntarily in CNO,
finding over 3,000 living members with exclusive UKB enrollment. CNO's
continuous interference with internal UKB politics, and an election
dispute in 1990 resulted in a determination by the Department of the
Interior to force the UKB to operate under a BIA approved Council,
pending a new election.
     The 3 October 1950 Charter, approved by Secretary of the Interior
William Warne on 9 May 1950, and the Constitution and By-laws, approved
by a popular vote by over 30% of qualified UKB members in a
secretarially-authorized and supervised Federal election on 2 October
1950, remain very much intact and effective. Due to secretarial
acquiescence, the Band eliminated secretarial approval of its
governmental acts as cited in their governing documents by operation of
law on 3 October 1960. Also, the Charter, Constitution and By-laws,
Enrollment Ordinances, Base Roll, and many updates as recommended by the
Enrollment and Membership Committee and adopted by the Tribal Council in
individual resolutions from 1950 to the present, show the membership
criteria and procedures by which the Band has governed its affairs,
regarding membership.
     The issue of UKB membership receives more extensive review below.
It is sufficient here to add that the members of the UKB Tribal Council
always have participated in enrollment activities and in the
verification of qualifications of prospective members, and always have
approved enrollment updates through formal Council action. Tribal
membership criteria have altered through the years, as conditions and
needs have changed. The 1939 Roll, reaffirmed in 1949, became the
foundation of the Base Roll, subject to amendment in the first five
years after approval in 1950. During that period, consistent with the
1950 enrollment laws, members of 1/4 or more Cherokee ancestry, using
the Dawes Roll or other acceptable proof of Cherokee ancestry by blood,
were adopted into the Band. Enrollment activities continued for fifteen
years. In 1963, the UKB Council worked on an updated roster as the
result of additional membership field work, and for a short time, the
enrollment ordinances required new members to prove 1/2 or more degree
of Cherokee Indian blood. Enrollment work continued sporadically, until
in 1978, when the UKB Council sought aid from Muskogee Agency to restore
order following the latter years of Chief Glory's somewhat chaotic
administration, and the Enrollment Committee started work on a new
addition of adoptees, under a series of new ordinances. New additions to
the Roll occurred through Council resolutions in 1980, and in another
series of additions, concluding in October 1982.
     Using funds from a 1984-1986 $70,000 P. L. 93-638 grant to update
and revise the Roll, the UKB reinvestigated and updated all members'
files and brought their contents up to date, with the active cooperation
of Muskogee Agency staff and technical assistance. Comporting with the
terms of the grant, the Enrollment and Membership Committee and
Enrollment Specialist compiled a list of all members who had met the
blood quantum requirements in effect at the date of each individual
member's enrollment, then verified which members were 1/4 or more
degree, and which members had responded to requests for current
information regarding residency, marital status, family status, and
other information. The staff compiled information on deaths since the
last enrollment update. Information regarding members whose files were
incomplete as a result of this investigation, including those who were
considered less than 1/4 degree Cherokee, appeared on a separate list of
members whose files were incomplete or somehow deficient, and yet who
were considered entitled to membership. The Band delivered these
compilations to the Muskogee Agency in 1986, and submitted these records
to Federal District Court for the Northern District of Oklahoma in Tulsa
in 1987, upon subpoena by the State of Oklahoma, as a tribally-certified
roll. Cordelia Tyner, a/k/a/ Cordelia Tyner Washington, and the United
Keetoowah Band of Cherokee Indians v. State of Oklahoma, ex re., David
Moss, District Attorney and David Moss, individually; M. Denise Graham,
individually, No. 87-2797, U. S. D. C., N. D., Oklahoma. See also:
Appeal from U S. D. C., N.D. Okla. D. C. No. 87-C-29-E, 14 March 1991.
     UKB Membership Ordinance 90 UKB 9-16 16 September 1990 provided
that any descendant of 1/4 Cherokee Indian blood of any enrollee on the
1949 UKB Base Roll, or on any other historical Cherokee Roll, shall be
eligible for enrollment in the UKB. Final determinations of Cherokee
Indian blood quantum continue to rest with the UKB Tribal Council. Under
that same ordinance, UKB members who held affiliation of any kind with
any other federally-acknowledged tribe were required to relinquish that
membership.

THE TERMINATION OF THE UKB

     For reasons that shall become evident below, the UKB has difficulty
responding to the following criterion in 25 C. F. R. 83.7, requiring the
Band to show that it:
     (g) Is not expressly terminated or otherwise forbidden to
     participate in the federal-Indian relationship by statute.
                                 * * *
In 1991, Congressman Mike Synar (2nd District, Oklahoma) cited in
testimony to a congressional hearing a purported 1980 BIA finding that
the UKB had failed to perform is contractual duties under the 1984
grant, because it had not separated registrees of CNO out of the UKB
roll.(U. S. Congress, House Interior and Insular Affairs Committee
Hearings on 101-116 on FY 1992 Interior Appropriations, United Keetoowah
Band of Cherokee Nation (11 April 1991)) Neither the hearing's Chair.,
Congressman Les AuCoin, nor another witness, Mr. Ronald Eden, caught the
patent logical inconsistency in the testimony, in that it would be
physically impossible for any employee of the BIA, however prescient, to
issue a finding in 1980 about a contracting party's performance on a
grant that was not issued until four years later and not completed until
six years later. Further, the alleged "finding" was entirely false. A
simple perusal of the Grant Letter and Final Report from the UKB Council
on the completion of the Enrollment Project would have allayed any real
concerns of Congress that the UKB might be incapable of using P. L. 93-
638 funds properly.
     The real problem was that CNO never wanted the UKB to have separate
Federal funds, and certainly never wanted the UKB to have a distinct
Tribal Roll. Although the UKB has made repeated efforts to sort out the
Roll, and though in 1990 and 1993 the UKB Tribal Council was able to
obtain current information (from the Muskogee BIA Agency, not from CNO)
regarding the number of UKB members registered at CNO, these numbers
have continued to shift as UKB members have attempted to relinquish CNO
registration. CNO has been distinctly uncooperative since 1980 as UKB
has attempted to develop an exclusive Roll. The CNO actively has
encouraged UKB members to re-register after relinquishing their CNO
registration, or has refused to accept and record relinquishments (even
of UKB officers and administrators). In some cases, CNO has issued
apparently unsolicited original registration documents to UKB members
and their families who never have applied for registration with CNO in
obvious attempts to keep records confused, and to substantiate their
claims of dual affiliation. The UKB regularly denies contract services
eligibility to UKB members when they attempt to use their UKB
credentials to qualify for services, demanding that only CNO credentials
are valid. Individuals who offer UKB credentials in the first instance
at CNO service agencies characteristically find great difficulty in
receiving services afterwards, upon displaying valid CNO credentials. It
clearly is inconsistent for CNO to claim the UKB Roll is duplicative of
the CNO register, while CNO simultaneously denies the validity of the
UKB Roll. However, as a rule, logical analysis rarely comes into play in
CNO's discriminatory treatment of members of the UKB.
     Cherokee Nation of Oklahoma has claimed (since 1979) that all
members of the UKB are eligible automatically for registration in
Cherokee Nation of Oklahoma, because Cherokee Nation of Oklahoma
requires exclusivity of "registration" except for members of the UKB.
This contention is untrue, among other reasons, because many UKB members
are neither Dawes Commission Cherokee enrollees nor descendants.
Cherokee Nation of Oklahoma also has contended (since 1984) that all
Cherokee Nation of Oklahoma registrees were (technically) eligible for
enrollment with the UKB. CNO is not competent to make this allegation,
because UKB membership is a matter for the UKB Council, not any
official, Council, or agency of Cherokee Nation of Oklahoma or of the U.
S. to decide. In the Muskogee hearings for the American Indian Policy
Review Commission on 13 May 1976, Ross O. Swimmer testified, "I think
that the tribe's right to define its own membership is extremely
important."(AIPRC Final Report, 17 May 1977, p. 522) The American Indian
Policy Review Commission found:
          There are two specific problems facing the Five Civilized
     Tribes:  (1) the reliance on the 1907 Dawes Commission rolls as the
     sole major determinant of the tribal membership;  and (2) the
     inclusion of the descendants of the freed slaves of the tribes, as
     a result of treaties made after the Civil War, on the tribal rolls.
          All descendants of those persons on the Dawes Commission rolls
     are considered tribal members for purposes of voting in tribal
     elections and referendums, and distribution of judgment moneys.
     Therefore, many persons of very little Indian blood are allowed to
     vote in tribal elections, making decisions which may affect their
     lives not at all, while affecting Indians greatly.
          The other membership problem plaguing the Indians of the Five
     Civilized Tribes is the inclusion of freedmen bands. After the
     Civil War, the reconstruction treaties of the tribes said that they
     would provide lands for their freedmen. These freedmen were given
     allotments which have long since passed into fee simple status.
     However, the descendants of these freedmen are considered tribal
     members because of the treaty provisions. It seems strange that the
     United States has violated almost every provision of those 1866
     treaties, yet it holds the Five Civilized Tribes to their word.
     Again, these people do not identify as Indians, the Federal
     Government does not recognized them as Indians, yet they make
     decisions affecting Indians. Clearly, Congress should allow the
     tribes a method for restricting their membership to persons of
     Indian descent rather than imposing a Federal definition based on
     descendancy from the Dawes Commission rolls. The final irony of the
     situation is that, although the tribes must keep the descendants
     from the Dawes Commission rolls for tribal political purposes, the
     Bureau of Indian Affairs provides services only to tribal persons
     of one-quarter or more Indian blood.(Muskogee hearings, 13-14 May
     1977, AIPRC Final Report, 17 May 1977, p. 522)
Cherokee Nation of Oklahoma allows registration for voting purposes for
non-freedman Cherokees of any degree or source of Indian blood, while
the UKB requires the class of future members (i.e., all those adopted
after 1949) to demonstrate 1/4 degree Cherokee Indian blood.
     Because Cherokee Nation of Oklahoma never has reorganized under an
OIWA Charter and IRA Constitution, CNO cannot evade restrictions under
the Act of 1906 preventing Cherokee Nation from adopting new enrollees,
or a new roll. The 1947 Act required those claiming descent from
Cherokee Nation to demonstrate that descent by proving lines tracing
from persons on the final Dawes Commission Roll of Cherokee Nation. The
UKB are not similarly restricted, because the UKB is not part of or
subordinate to Cherokee Nation of Oklahoma or subject to the authority
of CNO's Principal Chief. Cherokee Nation of Oklahoma contends that its
reliance upon the Dawes Commission Roll to determine Cherokee descent
and its registration of Cherokee Dawes descendants is as good as the
formal adoption of a Roll, for the purposes of proving dual affiliation
of UKB members; but the Dawes Roll is not the UKB Base Roll. CNO never
adopted any new Roll, or even updated the Cherokee Dawes Roll, which
closed on 4 March 1907. When the last of the Cherokee Dawes Roll
enrollees dies, the closed Roll will be vacant. CNO never provided for
formal adoption of any UKB members individually or corporately, as
members of an adoption class, as CNO did in the case of the Delaware
Dawes enrollees. Therefore, looking to the precedent of Secretary Manuel
Lujan's San Juan Southern Paiute determination (1989), like the Navajo
Tribe in the early 1980s, CNO today has no real tribal roll, except for
the original Cherokee Dawes Roll.
     In attempting to comply with the terms of the 1984 P. L. 93-638
Enrollment Update Grant, GO8G14204002, the Band's Registrar initially
requested the Department's permission to rely on the 1907 Cherokee Dawes
Commission Roll for information. The Band lacked access to their own
enrollment records, the original copies of which had been in Federal
custody since 1950.(Letter, 9 January 1985, Jane E. McGeisey, Registrar,
United Keetoowah Band, to BIA, Tahlequah Agency, re: "Updating from 1949
Base Roll")  This letter is the only plausible source we know for the
allegation that the United Keetoowah Band ever was substantially out of
compliance with the terms of the 1984 P. L. 93-638 Grant, although the
Band resolved the problem by relying primarily on the 1949 United
Keetoowah Band Base Roll.  The Department's response was unambiguously
clear in saying that the United Keetoowah Band's Base Roll is not, and
cannot be, the 1907 Cherokee Dawes Commission Roll:
     A memorandum from the tribal registrar is being returned to you due
     to non-compliance with the present grant. You are locked in with
     the 1949 base roll as required by the terms of the present grant.
     This situation can be cleared up with the Muskogee Area Office
     Tribal Operations staff when they are assigned for technical
     assistance to assist the United Keetoowah Band in the enrollment
     process shortly.(Letter, 23 January 1985, Acting Superintendent
     Cecil Shipp, Tahlequah Agency, Bureau of Indian Affairs, to Chief
     John Hair, United Keetoowah Band; emphasis added)
Upon being assigned to supply technical assistance to the Band, the BIA
Muskogee Area Tribal Operations staff should have supplied the United
Keetoowah Band's Registrar with access to, if not copies of, the
materials in the 1949 United Keetoowah Band Roll Card File.
     Correspondence in the NARA, Washington, D. C., shows that the BIA
took custody of the 1949-1950 Card File supporting the United Keetoowah
Band's 1949 Roll in 1950. However, the Band was unable to find or use
these materials in compiling the enrollment update, and the BIA made no
disclosure to the Band regarding the location of the Card File. For
records on receipt and storage of records relating to the enrollment and
reorganization of the United Keetoowah Band, see generally: Central
Classified Files of the BIA, Department of the Interior. Box 330.
Accessions 57A-185. Records for 1948-1952. Cherokee Nation. 00-219
(010.-020.; 050.-059., Box # 12), File # 43292; originally in Box # 36,
Accessions 56A-588, 1-58, 14/46:49-1, 1946.  Transmittal letters of Area
Director W. O. Roberts, Five Civilized Tribes, attest to the receipt and
archiving of these materials.
     Between November 1984 and March 1986, UKB enrollment staff and
members of the UKB Tribal Council compiled a list of all members who had
met the membership requirements in effect at the date of each individual
member's enrollment, including those on the 1949 Roll. Lacking the 1949
Card File, the Band replaced applications for all 1949 enrollees, as
well as all enrolled since them whose file jackets were incomplete,
defective or missing. The Band verified which members were 1/4 degree
Indian blood or more, for whom current addresses and other information
was absent, or whose status as active members was otherwise uncertain.
The enrollment staff updated all files and compiled two final lists of
current members as of 1986, including the most current information
regarding residency, marital status and the like. The project staff also
compiled information on deaths since the last enrollment update.
     At the end of the project, the Band prepared a current (1986) Roll
of full members in good standing confirmed by the Council to be of 1/4
degree Cherokee Indian blood or more. The Band approved a separate list
including Associate or Honorary members, and full members who at one
time had been in good standing but whose files still were incomplete or
deficient at the end of the Grant. Some files were impossible to update
despite good faith efforts by the staff and Council (due to the members'
failure to respond to inquiries and supply a current address, or due to
uncertainty whether the persons even were alive). Some Associate Members
enrolled since 1949 moved to the 1986 list of Full Members in good
standing, due to blood quantum clarifications. The final count from the
enrollment office was 1376 UKB 1949 members. Of the 1949 files, 764 were
amended or updated, either by revised application or proof of demise.
The new total, including the 1949 Base Roll and 1986 Current Roll, was
6,050. The UKB completed the 1949 United Keetoowah Band enrollment
update, and the Tribal Council certified the enrollment update and the
new 1986 Membership Roll on 15 March 1986.
     The Band transmitted the updated 1949 Roll, the newly approved and
duly adopted 1986 Membership Roll, and the Final Report of P. L. 93-638
Grant G08G142002 to the BIA's Muskogee office as a deliverable on 16
March 1986. The Band submitted these records to Federal District Court
with a cover note from the BIA Muskogee Area Office, in the course in
litigation in 1987 in Cordelia Tyner, a/k/a/ Cordelia Tyner Washington,
and the United Keetoowah Band of Cherokee Indians v. State of Oklahoma,
ex re., David Moss, District Attorney and David Moss, individually; M.
Denise Graham, individually, No. 87-2797, U. S. D. C., N. D., Oklahoma.,
when the State subpoenaed a copy of the Band's tribally-certified roll.
After the completion of the enrollment project, a series of burglaries
and incidents of vandalism occurred at the UKB headquarters in
Tahlequah, resulting in damage to or destruction of some files and other
property. However, all members' files predating 15 March 1986 had been
certified already as to their status as of that date. Also, increased
security at the tribal offices and continuing updating of files in the
course of conversion of the enrollment system to automation has improved
record-keeping.
     Finally, in 1990, after a systematic review of the United Keetoowah
Band's enrollment and membership files (and a comparison of those data
with the Cherokee Nation of Oklahoma's data), the BIA Muskogee Area
Office confirmed, that more than 3,000 members of the United Keetoowah
Band, including its Base Enrollees, never were registered with Cherokee
Nation of Oklahoma, and therefore never had any form of dual affiliation
with that entity. Some 4,700 UKB members either never voluntarily
registered with Cherokee Nation of Oklahoma, or once were registered
(voluntarily or involuntarily), but subsequently voluntarily
relinquished their CNO registration. Since 1950, the UKB has continued
to add to its open Roll, and in 1990 adopted a new Enrollment and
Membership ordinance, which as amended, continues in effect. Since 1990,
over 450 enrolled members of the Band voluntarily have relinquished
their affiliation with any other Indian entity. Hundreds of the original
UKB members and Dawes enrollees who had registration or membership in
CNO have died. On 24 July 1992, Rosella C. Garbow, Muskogee Area Tribal
Operations Officer, declared:
     This is to certify that records created in 1985 show that the
     United Keetoowah Band of Cherokee Indians in Oklahoma has
     approximately 4,700 enrolled members residing within their service
     area.
UKB members have continued to relinquish their affiliation voluntarily
with any other federally-recognized tribe since that date. The 1986
United Keetoowah Band Roll, completed during the P. L. 93-638 grant, was
known to be an official Tribal Roll for all purposes, duly adopted by
the Tribal Council, and authenticated by the BIA, within the meaning of
Federal Indian Law, in 1991. It is up-to-date, and there are regular
monthly additions through adoption, and clarifications of exclusive
affiliation through relinquishment from Cherokee Nation of Oklahoma.
     Regardless of Dawes descendency, it is the policy of the United
Keetoowah Band of Cherokee Indians in Oklahoma that all lineal
descendants of the 1949 Base Roll and current roll are automatically
eligible for membership in the Band. The UKB hoped that the enrollment
update and other status clarification efforts would result in separation
of their population from CNO's, and would lead to the development of a
UKB land base and separate programs. However, a separation of the two
populations required the cooperation of CNO, and that was impossible for
the UKB to obtain. As a result, the UKB must continue to finance
litigation to obtain a clarification of their political and economic
rights. In January 1993, the UKB Council has asked the Secretary to
convene a secretarially-supervised Federal election to amend the UKB
Constitution, requiring 1/4 Cherokee blood and exclusive enrollment in
the UKB as qualifications of future membership, while requiring current
members to relinquish affiliation in any other tribe by a set date.
     Having reviewed the history of the UKB in brief, the reader should
perceive readily the problems with Mr. Ron Eden's testimony to
Congressman Aucoin's committee in April 1991 [at the U. S. House
Interior and Insular Affairs Committee Hearings on 101-116 on FY 1992
Interior Appropriations, United Keetoowah Band of Cherokee Nation (11
April 1991)]. The hearing record contained a brief discussion of the
BIA's reasons for moving to rescind the 16 January 1980 Letter of
Assistant Secretary Forrest Gerard. Gerard's policy prevented separate
services and land acquisition for the United Keetoowah Band and the
Creek Tribal Towns. The speakers commented on the autonomous status of
the United Keetoowah Band organized under the 1934, 1936 and 1946 Acts.
Chairman Aucoin then cited what purported to be the Department's own
long-standing determination that the Band had failed to carry out its
contractual obligations under one P. L. 93-638 grant. Realizing that
Eden was loath to agree that the Band was unrecognized or did not
deserve recognition, Congressman Aucoin suggested that notwithstanding
other law or equities, the Band did not deserve a chance to contract
services for the benefit of the Band:
     Just one second, Mr. Eden. In 1980, looking at Mr. Synar's
     background information, he says on page 4 of his background paper
     that, "In 1980, upon reviewing a funding request from the UKB, the
     Department of the Interior issued the following policy." This is
     not the full quote but the conclusion of the quote:
          There is no justification for contracts and/or grants with UKB
          to provide the same services to those portions of the Cherokee
          Nation which would be served under the Nation's contracts
          and/or grants.  The only funding the BIA issued was a 1984
          grant of $70,000 to help the UKB establish a tribal roll and
          identify its unique service population.  To date, however, the
          BIA has concluded that the UKB has failed to accomplish either
          task.
     What about that?
     Mr. Eden.  Correct.
     Mr. AuCoin. Those are the Department's own words in 1980.
     Mr. Eden. Well, that is the policy that we're talking about as a
     result of the membership of the Cherokee Nation and the Keetoowah
     Band having the same enrollment criteria and traced to the same
     base roll.  That was the reason that essentially the Gerard policy
     was put in place.
     Mr. AuCoin.  Why did you change the policy then?
     Mr. Eden.  Well, we started out changing the policy because of
     another tribal issue;  namely, that the Creek towns did not want to
     continue receiving their services from the Creek Nation.[U. S.
     Congress, House Interior and Insular Affairs Committee Hearings on
     101-116 on FY 1992 Interior Appropriations, United Keetoowah Band
     of Cherokee Nation (11 April 1991); emphasis added]
The date "1980" appears several times in this testimony, always alluding
to a finding of the Department supposedly made that year regarding the
Band's competency to carry out contractual obligations. Eden twice
expressly confirmed the existence of that determination in "the
Department's own words." Eden did not address the discrepency between
the date of the alleged negative "finding" and the date the grant was
awarded, much less admit the "finding" never existed. The "finding" was
a citation in Cherokee Nation's briefing materials supplied to the
Committee and the BIA. What is most surprising is that evidently, no one
at the hearing noticed the falsehood due to a strictly "ends-oriented"
agenda.
     Recall Muskogee Area Tribal Operations Officer Rosella C. Garbow's
24 July 1992 finding that the UKB has an Oklahoma resident population,
and service area population, of 4,700, of whom nearly 4,000 now are
exclusive UKB members. The Band received Ron Eden's 24 August 1992
determination as Acting Assistant Secretary that the UKB is an
autonomous, federally-recognized American Indian Tribe, entitled to
separate services and land acquisition in Oklahoma. The alleged "1980
decision of the BIA" only would be significant -- if it existed --
because it purported to reflect on the question whether the Band
deserved to serve its own needs, or whether the Band and its members
should be compelled to rely on Cherokee Nation of Oklahoma for programs
and services. The implication is that the Band was incapable of meeting
contractual obligations. The alleged BIA determination obviously could
not have been a 1980 "decision" by the Department of the Interior on the
UKB's ability to provide satisfactory performance on a 26 November 1984
P. L. 93-638 grant.
     The purpose of the 1984 grant was not to enable the Band to
"identify [the UKB']s unique service population," simply by declaring
the roll exclusive, once complete. The purpose of the grant was to allow
the UKB to update and verify the contents of individual members' files,
in order to correct the 1949 Base Roll and to update the current roll so
that the Band could identify its exclusive membership.(Letter, 24 July
1992, Area Tribal Operations Officer Rosella C. Garbow TO WHOM IT MAY
CONCERN) Without additional clarification from the records of CNO
registration, as confirmed by the BIA after the completion of the
project, identification of the unique UKB service population (comprised
of those who never had been citizens of any other recognized tribe, and
who had relinquished any CNO status) would have been impossible.
Identifying the UKB's unique population has continued to be challenging
since 1986, because CNO routinely re-registers UKB members who
relinquish CNO registration, without their consent or knowledge. CNO now
requires UKB members to "show good cause" and imposes a 180-day waiting
period before honoring relinquishments. With people supposedly clamoring
to register with CNO and over 150,000 on the CNO registry, it is
amazingly difficult for UKB members to prevent CNO from registering
against their will.
     Apparently, Congressman Synar's briefing book did not contain a
copy of the P. L. 93-638 contract letter to the UKB, correspondence and
reports generated during the project, or the Band's voluminous Final
Report on the Grant, because that document would have shown the purpose
of the Grant and its successful completion. The BIA and Congress ignored
the Band's submission of the Final Report, the amended 1949 Base Roll
and updated 1986 Roll. Congressman Aucoin concluded with a final
question:
     [A]ssuming no enactment in 1946 or any other year allowing the UKB
     to organize under section 3 of the Oklahoma Indian Welfare Act,
     would or could the BIA recognize the UKB as a new tribe or band?
     Amplify that for the record because obviously Mr. Synar believes
     that there may be the need for a record to be laid and perhaps
     legislation to be amended.[U. S. Congress, House Interior and
     Insular Affairs Committee Hearings on 101-116 on FY 1992 Interior
     Appropriations, United Keetoowah Band of Cherokee Nation (11 April
     1991)]
The only item the BIA used to "amplify the record" was the Kirgis
Keetoowah -- Organization as a Band Opinion of 29 July 1937. The
Department found it inconvenient to cite Acting Secretary of the
Interior Abe Fortas's finding, supporting the plan to allow all the
various factions of the Keetoowah Indians to reunite and reorganize as
a Band.(Senate Report 79 Cong., 2nd Sess., No. 978, 1946,  Testimony of
Acting Secretary of Interior Abe Fortas; see also, House Report 79th
Cong., 1st Sess., No. 444, 1946 and House Report 79th Cong., 2nd Sess.,
No. 2705, 1946) The Department conveniently forgot that there already
was a Federal Charter for the Keetoowahs in 1905. The BIA and Congress
refused to refer to records of the Organization Field Agents from 1937
to 1946, or to the legislative history of the 1946 Act, that showed why
and how the UKB was reorganized. The Department ignored the 24 April
1944 determination of Assistant Commissioner of Indian Affairs for
Tribal Relations Branch D'Arcy McNickle, which recommended that the
Department jettison the Kirgis Opinion as fatally defective. It is worth
the reader's while to review this document, so it is reproduced here in
its entirety. It was this determination that reflected the Secretary's
views in recommending the passage of the 1946 Act as a measure
clarifying the status of the UKB:
          In 1937 the Solicitor's Office ruled that the Keetoowah
     Society of Cherokee Indians was not a band for the purpose of
     organizing under the Oklahoma Indian Welfare Act. The opinion
     characterized the organization as "a secret society representing
     the most conservative portion of the Cherokee Indians", and having
     for its objective in the beginning, opposition to slavery, and
     subsequently opposition to allotment. The Solicitor's decision was
     based largely on information obtained from a report compiled by
     Charles Wisdom, an anthropologist attached to the Indian Office.
          Mr. Wisdom in examining into Cherokee history made these
     conclusions: (1) That while the name Keetoowah was derived from an
     ancient town, there is no historical connection between the society
     and that original political group; (2) That there exists only a
     cultural and mystical relationship between the two.
          Using the foregoing information the Solicitor, in rejecting
     the Keetoowah Society's request for recognition as a band, held
     that a band is a political body, having the functions and powers of
     government. Likewise, it must possess a common leadership,
     concerted action and a well-defined membership; moreover, the
     membership is perpetuated primarily by birth, marriage and
     adoption. The opinion drew a distinction between the Keetoowah
     Society and the Creek towns, holding that the latter were
     independent units capable of political action and particularly the
     initiation of hostile proceedings; not only were they the
     functioning political subdivisions of the Creek Confederacy or
     Nation, but they were the original independent units of government
     of the Creek Nation. The Solicitor went on to say that "neither
     historically or actually" was the Keetoowah group a governing unit
     of the Cherokee Nation but rather it was a society of citizens
     within the Nation with common beliefs and aspirations.
          This argument of the Solicitor's Office accepts as fact a
     fiction which, for its own reasons, the United States Government
     has insisted on treating as a fact for more than a hundred years.
     There was not aboriginally a Cherokee Nation. There were among the
     Cherokee people a number of towns and there was an elaborate
     interrelationship between these towns, as there was also
     intertribal relationships as between the Cherokees and the various
     tribes in the Tennessee valley and along the Eastern Seaboard. The
     Cherokee people were located in four general areas, referred to as
     the Lower Settlements, the Valley Settlements, the Middle
     Settlements and the Overhill Settlements. In a recent study of the
     Cherokee s published in Bulletin 133 of the Smithsonian Institution
     by Dr. William Harlen Gilbert, Jr. (1943), the following passage is
     found:
          The central area of the Cherokees, comprising the Kituhwa
          (Middle) and the Valley Settlements, was the heart of the
          tribe.
     Later, during the Revolutionary course [and] after the removal in
     1838 only fragments of the people remained. Quoting again from
     Gilbert:
          By far the largest and most important of the remnantal
          Cherokee groups after the removal were those clustering around
          the juncture of The Ocona and Tuckaseegee Rivers near the old
          settlement of Kituhwa in the heart of the old Middle
          Settlements.
          Moreover, the term "Kituhwa" (Keetoowah) is used to designate
     one of the two dialects still spoken in the Eastern Cherokee area.
          The foregoing information lends considerable color to the
     contention of Mr. Boudinot, namely, that the term "Cherokee" never
     should have been taken as a tribal name; that in actuality
     "Cherokee" is derived from "Tsalagi" which may or may not have been
     used by the Cherokees themselves -- Boudinot claims that it was a
     place name of minor importance, not properly a tribal designation.
     Mooney's article in the American Handbook observes that the people
     also called themselves "Ani-Kituhwagi" meaning "People of Kituhwa",
     which he describes as "one of their most important ancient
     settlements".  Mooney also points out that the Delawares and other
     tribes called them "Kittuwa".
          At the very least, then, the term "Keetoowah" was originally
     the name of a Cherokee town, perhaps the most important of the
     ancient towns; and in its broadest implication it may be that the
     term is a more appropriate cognomen for the entire people. Taking
     it at its least implication, Keetoowah is, historically at least,
     on a par with the Creek towns in that it was originally an
     independent unit of government. Hence the Solicitor is wrong in
     saying that Keetoowah was not historically a governing unit.
          Next it remains to explore whether the original significance
     of Keetoowah, as being somehow associated with the heart and the
     center of the Cherokee people, went with the people when they were
     expelled from the original homeland. The Solicitor assumes that the
     contrary was true: that the term was only resurrected in the
     stressful days before the Civil War when the Cherokee people found
     themselves split on the slavery issue, and that it was again
     invoked when the fact of tribal dissolution approached. As I point
     out above, the Solicitor characterizes it as a secret society. The
     question deserves more research than it has had up to now. Emmett
     Starr in the "History of the Cherokee Indians" (quoted by Wisdom),
     presents facts which indicate that Keetoowah was a living thing and
     that it went with the people. Writing about Red Bird Smith, who was
     the moving spirit in the founding of the Night Hawk Branch of the
     Keetoowah organization, Starr points out that Red Bird was born
     near Fort Smith, Arkansas, in 1859, while his parents were enroute
     to Indian Territory, and that his father, Pig Red Bird (the name
     Smith was added by white people), was an ardent adherent of the
     ancient rituals and customs, which he taught to his son. Red Bird
     then went on to become one of the Chief expounders of the religious
     beliefs and moral codes of the old life. When the Keetoowahs
     drafted their constitution in 1858, they did so not as a private
     and exclusive society, one  feels, but as a group of trustees might
     organize in order to keep intact the property and the spiritual
     estate of the people facing peril. Previously, there had been no
     occasion for such formal organization because Cherokee laws and
     customs had continued to function. By 1858 many non-citizens had
     come into the Nation, factionalism became strong, and it was
     necessary to adopt measures in self-protection. The Keetoowahs even
     adopted a flag in the heat of the Civil War, around which they
     rallied support for the cause of the North. In February 1863 they
     abolished slavery unconditionally and forever (Mooney). In all of
     this that acts as a nation, certainly, not as a private, voluntary
     association.
          The record, incomplete as it is, seems clearly to indicate
     that the Keetoowah group, whether we call it a society, a faction,
     or a band, did exercise independent political action, even to the
     point of initiating hostile proceedings. It has been a formally
     organized body at least since 1858, with representative districts,
     and for many years it had a common leadership. The fact that the
     original body split into factions ought not to persuade our
     judgment as to the true nature of Keetoowah. At present there is in
     evidence a real desire on the part of all factions to reunite in a
     common organization.
          In considering the status of the Keetoowah association, one
     ought not to lose sight of the total history affecting the Cherokee
     Indians. As I pointed out earlier, the United States government
     insisted on treating with the Cherokee Nation when there was no
     such entity, and more than there ever was a Creek Nation. The
     pressures exerted by the United States Government resulted in
     producing numerous counterpressures within the Cherokee society.
     Those elements within the tribe who were compliant and willing to
     concede the demands made by the Untied States in time were
     recognized as comprising the corpus of the tribe; those who
     resisted were treated as a malcontent minority. At a most critical
     juncture in Cherokee history, on January 31, 1899, a general
     election was held for the purpose of accepting the Dawes Commission
     terms. The Keetoowahs, that is to say, the Indian element off the
     Cherokee Tribe, refused to participate and as a result their
     interests were defeated by 2015 votes. The membership of the group
     was more than sufficient to carry the election if they had mustered
     their full strength. From this indication we gather that at that
     time the Keetoowahs actually represented a majority within the
     tribe.
          The Keetoowahs themselves have never accepted the view that
     they are not "the people' and that they do not speak for the real
     interests of the ancient Cherokee world. They continue to this day
     to speak and act in all patience as if the decrees of the courts
     and the acts of the Congress had never been. But they are still
     puzzled at the failure of the United States to understand the
     simple thing they have always said, namely that Keetoowah is
     Cherokee and should never have been considered anything else.
          I propose that we bring this matter again to the attention of
     the Solicitor and try to get a revision of the 1937 opinion.
     (Position Paper on the UKB, 24 April 1944, D'Arcy McNickle)
In light of this memo, it is clear that the 1946 Act that followed was
not a Federal acknowledgment bill at all. As history shows, the
Secretary simply abandoned the Solicitor's Opinion and promoted status
clarification legislation. Congress even accepted without question Ross
O. Swimmer's bizarre story that Congress recognized the UKB in order to
accomodate Principal Chief W. W. Keeler in some way, although Keeler's
appointment to the Executive Committee of Cherokee Nation came two years
after the passage of the 1946 Act. Keeler was not Principal Chief of
Cherokee Nation until several months later, when the UKB reorganization
process was virtually complete.
     Disregarding all legislative precedent and the 100th Congress's
repudiation of termination, Congress passed Amendment 86 to the FY 1992
Interior Budget, agreeing to delete funding for the United Keetoowah
Band of Cherokee Indians in Oklahoma, providing further in the
legislative history that until such time as Congress enacts contrary
legislation, Federal funds should not be provided to any group other
than the Cherokee Nation within the jurisdictional area of the Cherokee
Nation. Unless the UKB is able to move entirely out of Oklahoma, the
result was this technically deficient language, which nonetheless
represents the express legislative termination for the purposes of
eiligibility of the first tribe since 1962:
     . . . until such time as legislation is enacted to the contrary,
     none of the funds appropriated in this or any other Act for the
     benefit of Indians residing within the jurisdictional service area
     of the Cherokee Nation of Oklahoma shall be expended by other than
     the Cherokee Nation, nor shall any funds be used to take land into
     trust within the boundaries of the original Cherokee territory in
     Oklahoma without the consent of the Cherokee Nation.
As Acting Assistant Secretary, Ron Eden issued a determination on 24
August 1992 that the UKB is entirely separate and autonomous from CNO,
and is recognized as a properly organized OIWA and IRA tribal government
that neither has been terminated nor barred from the Federal-Indian
relationship.
     Meanwhile, the nebulous status of CNO continues to receive blanket
endorsements from the BIA and summary approvals of Congress. With the
approval of the Secretary, the Councils of CNO and the Eastern Band of
Cherokee Indians of North Carolina adopted a concurring resolution
without notice to the UKB in August 1992 that they are the sole
federally-recognized Cherokee tribes. Principal Chief Mankiller
announced in January 1993 to all U. S. governors that the UKB is an
unrecognized Indian group. While claiming that she has made the
resolution of differences with the UKB a personal and political
priority, Mankiller has campaigned for the express legislative
termination of the UKB. CNO has signed a new self-governance program to
take effect in October 1993, and enjoys piecemeal restoration of the
inherent sovereignty of Cherokee Nation under the 1906 Act, based
largely on the misconception that the CNO is organized as a democratic
OIWA and IRA government. In a Letter, 7 July 1993, from John Ross, Chief
Spokesman, to Rosella C. Garbow, Director, Training and Operations, BIA,
Muscogee Area, asking for clarification on the following points:
          1.   Has the Cherokee Nation of Oklahoma ever proposed having
               an O. I. W. A. election to adopt a Charter?
          2.   Does CNO claim to have a Charter?
          3.   Does CNO claim to have a "blanket" concurring resolution
               from the UKB for CNO use of the UKB Charter?
Rosella C. Garbow initialed the memo and advised that the answer to all
three questions was, "No." There will be no level playing field between
the CNO and the UKB, as long as Congress and the BIA authorize CNO's
continuing attack on the UKB's sovereign interests. If the fate of the
UKB serves as precedent, no other small recognized tribe is safe.
     This concludes the UKB's formal response to CNO's 1991 demand that
the UKB submit to the Federal acknowledgment process to regain its
status as a federally-recognized Tribe. The UKB cannot submit to the
acknowledgment process, because according to Mr. Peter Taylor, formerly
of the Senate Committee on Indian Affairs staff, the UKB is de-facto
terminated, or forbidden to participate in the Federal-Indian
relationship, at least within the original territory described in the
1950 UKB Charter. While refusing to serve the UKB or put lands in trust,
or even to finance an IRA election to amend the UKB Constitution due to
the effect of Amendment 86 in P. L. 101-116, the BIA claims that the UKB
is non-terminated; and since the UKB still is listed as federally-
acknowledged, the UKB cannot petition for acknowledgment because the
Band is recognized. However, the Band is ineligible for ANA funds to
document a Federal acknowledgment petition because ANA/IHS presumes the
UKB is terminated and barred from recognition. CNO declares now that the
UKB does not exist, and that it never did, so that the UKB never was
recognized, and never was terminated. Therefore, the legislative
termination of the UKB is the termination that never was, and represents
the weirdest paradox at Federal-Indian law: unrecognized/recognized,
non-terminated/terminated. A quantum physicist couldn't make sense of
this quadruple negative. But any school child can see there's a naked
emperor in there somewhere.
     Congress, tribes, and the American people can learn important
lessons from the protracted travail of the UKB. The UKB is a
congressionally recognized tribe, while CNO is an administratively
condoned, legislatively diminished tribe unorganized within the meaning
of OIWA and IRA. In the interests of fair play, future claims of those
attacking tribal sovereignty should receive far more scrutiny. Claims
that a particular tribe's sovereignty can still be suspect after it has
reorganized should be the subject of thorough investigation. The reader
may be sure that the UKB will pursue exactly such an investigation in
this case. The United Keetoowah Band of Cherokee Indians in Oklahoma
offers the following documented briefing as the Band's only available
recourse in view of Cherokee Nation of Oklahoma's campaign of political
libel. Supporting documents are at the UKB Office, at 2450 S. Muskogee
Ave.(P. O. Box 746), Tahlequah, OK 74464 (918) 456-5491.

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

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



KEETOOWAH COHESIVENESS AND CONTINUITY AFTER 1906

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

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

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

THE ACT OF AUGUST 10, 1946

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

                                        HAAS
Hicks responded 9 January, 1947:
     KEETOOWAH CONSTITUTION SUBMITTED BY COHEN ON BEHALF OF REVEREND PICKUP
     WAS DRAFTED IN NINETEEN THIRTY NINE BY DWIGHT AND EXENDINE. PROVIDES
     FOR SINGLE ORGANIZATION. SUGGESTIONS HAVE BEEN MADE THAT CONFEDERATED
     ORGANIZATION WOULD BETTER SERVE NEEDS OF KEETOOWAHS. ONE CONSTITUTION
     AND ONE CHARTER FOR KEETOOWAH BAND CONTAINING PROVISION WHEREBY EACH
     CLAN ORGANIZATION IS GRANTED SEPARATE SUBCHARTER. LETTER TO THIS
     EFFECT HAS BEEN DRAFTED TO SUPERINTENDENT ROBERTS AND REVEREND PICKUP
     AWAITING ZIMMERMAN'S SIGNATURE.
     EOH:LEG                            HICKS
     cc: Tribal Relations.(See *: IV; File # 10144)
The answer came from the desk of Assistant Commissioner William Zimmerman,
Jr., on 20 January 1947, in separate letters to Five Civilized Tribes
Agency Superintendent W. O. Roberts, and to Rev. Jim  Pickup.(*: IV; File
# 47672-46, in Washington, D. C., and Ft. Worth NARA, surnamed by Hicks,
Mountjoy, Cooper and Haas) Zimmerman recalled the 1946 Act, "recognizing
the Keetoowahs as a band within the meaning of Section 3 of the Oklahoma
Indian Welfare Act, thereby making them eligible for organization under
that Act." He continued:
     The proposed constitution submitted to this Office by Associate
     Solicitor Cohen on behalf of Reverend Pickup was one that was drafted
     in 1939 with the assistance of Mr. Ben Dwight and Mr. A. A. Exendine
     who were Organization Field Agents. At that time it was proposed that
     the Keetoowahs would be organized as a single body. However, in
     reviewing the files I find that the Keetoowah Society is divided in to
     approximately six separate organizations, each operating independently
     of the other. In view of this, we are wondering if a confederated
     organization would not serve the needs of the Keetoowahs better than
     a single organization. There could be one Constitution and Bylaws and
     one Charter for the Keetoowah Band containing a provision whereby each
     sub-organization in the band could be granted a separate sub-charter.
     In the Oklahoma tribal organizations most of the powers are contained
     in the charter. Therefore, a confederated organization should work
     satisfactorily among the different independent organizations within
     the Keetoowah Band.
          Since the Tribal Relations Unit has no representative in
     Oklahoma, most of the preliminary drafting of the constitution and
     charter and the subcharters will have to be done in this Office. We
     should like to have your views as to the type of organization which
     you think will best fit the needs of the Keetoowah Band. Also, we
     should like to know the names of each of the separate organizations
     within the Keetoowah Band and approximately the total membership in
     each organization. Is our information correct that each of these
     organizations are active and independent to a large degree of each
     other?  On what matters do the groups act together? In other words,
     what are the present functions of the Keetoowah Society?  On receipt
     of this information we shall formulate a proposed constitution which
     may be discussed at meetings of the various Keetoowah groups and may
     be revised to meet the needs of the band.
In his letter on the same matter to Rev. Jim Pickup, Zimmerman referred to
the draft 1939 Keetoowah Constitution. Observing that "at that time it was
proposed that the Keetoowahs would be organized as a single unit,"
Zimmerman said:
     Since that date some of the groups within the Keetoowah Band have
     indicated that they desire to organize apart from the other groups.
     The Act approved on August 10, 1946, which recognizes the Keetoowahs
     as a band within the meaning of Section 3 of the Oklahoma Indian
     Welfare Act does not make provision for each group within the Band to
     organize independently of the others.
Therefore, Zimmerman concluded:
     [W]e are giving consideration to the formulation of a proposed
     constitution and a charter for the Keetoowah Band with a special
     provision whereby the separate organizations within the Band could
     each be granted a separate charter. When such a constitution and
     charter are formulated, representatives from the Five Civilized Tribes
     Agency will meet with the members of the Keetoowah Band and discuss
     the proposed documents. The constitution and charter can then be
     revised to include provisions which will fit the needs of the Band. In
     the meantime, we should like to have you present your views on the
     proposal to organize the Keetoowah Band as a body of independent
     organizations.
Pickup responded to Zimmerman in a letter of 12 February 1947 as Chief of
the United Keetoowah Cherokee Band of Indians in Oklahoma (See *: IV):
     We were organized on June 9th, 1939, as in a general Organization of
     all the Cherokee Indians wethere [sic] as groups or bands or clan.
     This was headed in that manner way, and it was agreeable, and we are
     not Partial with others from this Organization, as establitish [sic]
     following Constitution and By-laws of the United Keetoowah Cherokee
     Band of Indians, we believe we are entitle [sic] to a charter. This
     Organization is an effort to bring all Indians together for the
     purpose of enlightening the public, preserving Indians' cultural
     values, seeking an equitable adjustment of tribal affairs, securing
     and preserving their rights under treaties with the United States, and
     streamlining with the Indians Affairs, Better Educational Advantages
     and protections of Indians in their land rights, and this is what we
     advocate, and Better farming and Better livestock raising, and better
     homes. [Emphasis added. Pickup sent a second such Letter to the
     Commissioner on 3 June 1947; in Fort Worth NARA]
The UKB is the Tribe Congress recognizes as the umbrella organization for
all the other Keetoowah groups whose members are eligible to enroll with
the UKB in 1946. In view of this, the members of Cherokee Nation of
Oklahoma who are enrolled in the UKB are eligible to establish a daughter
organization under the UKB Charter. [See UKB Charter, 3 October 1950,
Article 3. (d), (f), (o), (u)]. However, Cherokee Nation of Oklahoma, as
currently acknowledged, is not the umbrella organization for the UKB.
Cherokee Nation of Oklahoma's 1975 Constitution, at "Article XIV. Clans,"
says:
     Nothing in this Constitution shall be construed to prohibit the right
     of any Cherokee to belong to a recognized clan or organization in the
     Cherokee Nation.
However, CNO cannot purport to charter such organizations as a tribe
reorganized under OIWA and IRA, as the UKB is authorized to do, because
these clans and societies are under the aegis of the UKB, not the CNO, and
because CNO it is not reorganized under those statutes.
     On 11 June 1947, Congressman William Stigler wrote to Assistant
Commissioner of Indian Affairs John Provinse regarding the failure of the
UKB to receive a charter "which was approved under an Act of Congress which
passed last year." He understood that a charter had been submitted for the
approval of the Indian Affairs Office, but with no results. He requested
that Provinse investigate and expedite the matter.(See *: IV; File # 22631)
Provinse obliged Stigler on a Letter dated 12 June 1947, with assurances
that he was referring the letter to the Chicago Office, "with the request
that Stigler be informed promptly as to the status of the proposed
charter."(See *: IV)
     On 20 June 1947, Acting Commissioner of Indian Affairs William
Zimmerman, Jr. informed Congressman Stigler of his recent correspondence
with Five Civilized Tribes Agency Superintendent W. O. Roberts and Rev. Jim
Pickup regarding the plans to resolve the charter issue by allowing the UKB
to create daughter organizations composed of the various subordinate
Keetoowah groups. Zimmerman referred to the subordinate groups as
"different independent clan organizations within the Keetoowah Band," whose
members also had UKB membership. Stigler replied on 26 June 1947 to
Zimmerman's 20 June 1947 letter, asking that Zimmerman inform him of
developments.(See *: IV; File 24482) Zimmerman also wrote to W. O. Roberts
on 20 June 1947, recalling the Office's 20 January 1947 request for
Roberts's views on tribal organization of the UKB, the present function of
the Keetoowah Society, and the total membership in the respective
organizations, to allow the formulation of a UKB Constitution.(See *: IV;
File # 22631-47 in Washington, D. C. and in Ft. Worth NARA)
     On 21 July 1947, Superintendent W. O. Roberts, in obvious frustration,
tardily respond to Commissioner Zimmerman's request for information
concerning the UKB. It was clear Roberts never had liked the idea of UKB
reorganization, and that he favored working with Principal Chief Milam of
Cherokee Nation. Roberts claimed, "While we are not closing the issue of
whether to organize a 'Keetoowah' group, we believe that it is pertinent to
the situation to use caution in being responsible for any measure as
different [sic!] as Mr. Pumpkin would wish."(See *: IV; File # 27285-1947)
Elsewhere, Roberts added, "Mr. Pumpkin's suggestion properly interpreted
simply means that he wants to Government to take care of the group which is
with him." Now that the UKB was not going to be the vehicle for reviving
Cherokee Nation, Roberts clearly was opposed to the reorganization of the
Keetoowah Band, and did not attempt to disguise his essential hostility to
what he viewed as the Band's "communistic" aspirations. Referring to the
United Keetoowah Band Chief as David Pickup, Roberts concluded that the UKB
proper, already organized under their 1939 constitution, was:
     less communistic but no [more] practical. His effort (he is an
     ordained minister of the Gospel) seems to be that, if he could collect
     into a common body certain Indians who are followers of his, they
     could have a perfect Christian body associated together in the
     fellowship of religious influence, that they would own their land,
     work out their economic salvation something like the Mennonites in the
     Dakotas. No one, who is fully cognizant of what this would mean, would
     wish to impose this on even a segment of the Cherokee people.
Roberts purported to have reviewed all pertinent files with care, and
concluded, "No where in our files is there any information as to just who
are the various bands of Cherokees which qualify as members of the so-
called 'United Keetoowah' Indians." Roberts was unaware of the Wisdom study
of the Keetoowahs and ignorant of the legislative intent behind the 1946
Act, or he was dissembling. His other correspondence suggests he had done
sloppy research up to this time. See, for example, his comment to Rev. Jim
Pickup of 15 December 1947 (Letter, 15 December 1947, Superintendent W. O.
Roberts to Rev. Jim Pickup, in Fort Worth NARA):
     From the correspondence in this office, I am inclined to believe that
     there are differences between the Keetoowah Band and the Cherokee
     Tribe, that they are not one and the same. The correspondence also
     makes reference to a Nighthawk group or band.
Here, Roberts admitted to Pickup that the Agency retained a body of
correspondence in his office that led Roberts to these conclusions about
the UKB; yet, in his communications with the Commissioner, Roberts
continued to be somewhat at a loss for records regarding UKB organization
(*: IV; Letter, Superintendent Roberts to Commissioner Zimmerman, 11
December 1947) Cherokee Nation of Oklahoma Constitution, CNCA, 2 October
1975, at Article XVI expressly supersedes the old Constitution of Cherokee
Nation, enacted 6 September 1839. Even prior to the completion of the UKB's
reorganization, the Cherokee Nation, though it existed, had not
constitutional authority over the UKB.
     Roberts had found that Eli Pumpkin, Chief of the Seven Clans Society
of the Cherokee Indians, did not want his group to be part of the "United
Keetoowahs." Roberts was so vague in his research that on the first page he
referred to the "twenty or thirty families" composing the Seven Clans, and
on the next page, to "some eighteen or twenty families" composing the same
group. Referring apparently his conversations with Rev. Jim Pickup, Chief
of the UKB, Roberts stated, "David Pickup has several times indicated an
interest in the 'Keetoowahs' but evidently his conception of the
'Keetoowah' idea is vague and not likely of any concrete expression."
     Making a common mistaken inference, Roberts offered, "the term
'Keetoowah' has a generic meaning applicable to anyone who was a member by
affiliation or relation of a certain society in the Cherokee Tribe. The
term 'Keetoowah' seems to mean literally 'Night Hawk'. "One could as
appropriately conclude that the term "America" is synonymous with "National
Football League," based on one's scant knowledge of American history and
institutions. The 'Night Hawks' were, and are, a faction of the Keetoowah
Band. In 1946, Roberts had received a memo from Trent clarifying these
issues (see Letter, October 16, 1946, Acting District Director Dover P.
Trent to Supt., Five Civilized Tribes Agency, to W. O. Roberts, File #
43292-46), but Roberts chose to disregard Trent's letter. Roberts compared
the Keetoowahs to the Dog Soldier societies among various historical Sioux
bands:
     NOTE:  To illustrate the difference between an actual organized entity
     in a tribe and general one, the Minnecongou band of Sioux was a
     clearly knit entity in the tribe. It would be proper to say,
     therefore, that there was a Minnecongou band of Indians and its
     history has a traceable identity. The Dog Soldiers Society among the
     Sioux was identifiable with each band in more or less degree, but was
     generally applicable all over the Sioux Tribe. An individual,
     therefore, might have been a member of the Dog Soldier Society, but
     the historical significance and the concrete identity of such society
     would be impossible to obtain at the present time. Likewise, a
     Cherokee Indian might have been a "Keetoowah", that is a member of the
     loosely knit and generic Night Hawks, but to reassemble any such
     organization today would be literally impossible.
Roberts's comparison of the Keetoowah people to the Dog Soldiers societies
among the Sioux bands and Nation was groundless. The 1946 Act acknowledged
the right of the Keetoowahs to reorganize, without allowing splinter groups
the same right. D'Arcy McNickle's 1944 determination on the Band's status
had won the full endorsement of Acting Secretary Fortas and Congress.
     Congress and the Secretary frequently have allowed single historical
tribes to divide into various bands or tribes, and to be recognized as
separate and autonomous entities, as in the case of the various Sioux and
Chippewa bands on all their separate reservations, in different states. The
Washoe Tribe of Nevada and California, while allowing autonomy to
individual member Washoe colonies or villages, have combined under a single
IRA Constitution and By-laws. The various Creek Towns organized under OIWA
and IRA with their autonomous governments, under distinct Constitutions and
By-laws, which in two cases stipulate that members of those towns may
enroll as full concurrent members of the Muscogee Creek Nation, with no
conflict. As Cohen (1982:6) states, "These and other subdivisions of
ethnological tribes are also 'tribes' for federal, political, legal and
administrative purposes." In Herring v. United States and Ute Indians, 32
Ct. Cl. 536, at p. 538 (1897), the Court of Claims ruled:
          A band, being the lowest and smallest subdivision, confederates
     more readily than any other form of corporate existence, . . . and may
     be composed of Indians of different tribes or nations, and becomes a
     de facto band by the extent of its membership, its continuity of
     existence, and its persistent cohesion, subject to the control and
     power of a leader having the recognized authority of a commander and
     chief.
          The different divisions of the Indians have not usually
     originated from the conventional mode which organizes white persons
     into political communities, but have originated as a condition in
     fact, and when so existing they are recognized by the laws and
     treaties as a separate entity, and held responsible as such.
In Dobbs v. United States, 33 Ct. Cl. 308, at pp. 313-317 (1898), the Court
of Claims found:
     [A] nation,  tribe, or band will be regarded as an Indian entity where
     the relations of the Indians in their organized or tribal capacity has
     been fixed and recognized by treaty; second, that where there is no
     treaty by which the Government has recognized a body of Indians, the
     court will recognize a subdivision of tribes or bands which has been
     recognized by those officers of the Government whose duty it was to
     deal with and report the condition of the Indians to the executive
     branch of the Government;  third, that where there has been no such
     recognition by the Government, the court will accept the subdivision
     into tribes or bands made by the Indians themselves.(Tully v. The
     Apache Indians, 32 Ct. Cl. R., 1, 1896)
          But in the application of this rule the court has had to go
     further and recognize bands which simply in fact existed, irrespective
     of recognition, either by the Department of the Interior or the Indian
     tribes from which the members of the band came. Victoria's band of
     Apaches was merely a combination of individuals from different bands
     associated together for the purpose of waging war against the United
     States. The band did not exist until its warfare began. It had no
     geographical home or habitat. A ferocious sense of injustice induced
     the Indians to prefer death to submission, and they fought the troops
     of the United States until the band and its members were extinct
     (Montoya v. The Mescalero Apaches, 32 I.D. 349).
In Montoya v. United States, 180 U. S. 261, at p. 266 (1901), aff'g.32 Ct.
Cl. 317 (1898), the Court sought to establish working definitions of the
terms "tribe" and "band":
          We are more concerned . . . with the meaning of the words "tribe"
     and "band." By a "tribe" we understand a body of Indians of the same
     or a similar race, united in a community under one leadership or
     government, and inhabiting a particular though sometimes ill-defined
     territory;  by a "band," a company of Indians not necessarily, though
     often of the same race or tribe, but united under the same leadership
     in a common design. While a "band" does not imply the separate racial
     origin characteristic of a tribe, of which it is usually an offshoot,
     it does imply a leadership and a concert of action. How large the
     company must be to constitute a "band" within the meaning of the act
     it is unnecessary to decide. It may be doubtful whether it requires
     more than independence of action, continuity of existence, a common
     leadership and concert of action.
While societies, clans and factions have emerged, changed or dissolved
among the Keetoowah people, the Keetoowahs are none of these. Among other
revivalistic voluntary associations, the Keetoowah Society (later known as
Keetoowah Society, Inc.) formed among the people who called themselves
Keetoowah, in Oklahoma, but not all Keetoowahs belonged to that Society at
its formation, and the Society has excluded many Keetoowahs since.
"Keetoowah" it is not the name of a clan, because clan descent runs with
the female line, and UKB membership, except in the case of the Keetoowah
Society and other voluntary associations within the UKB, never required
clan affiliation through the member's maternal line in one of the clans
represented among that particular voluntary association. Though almost all
the Keetoowah Band's factions claimed to incorporate all the Cherokee
clans, Four Mothers Nation incorporated clans of the Cherokee, Choctaw
(including Chickasaw), Creek, and Seminole Tribes.[Central Classified Files
of the BIA, Department of Interior. Box 463. Accessions 56A-588. Records
for 1948-1952. Five Tribes. 010. Legislation (011.-015). Correspondence
relating to Four Mothers Nation, a predominantly Creek organization]
Further, the clan names and their characteristics varied among the UKB
factional organizations, and still do. The Keetoowahs were united by common
descent, consent, and affiliation, who sought to reaffirm that unity under
a primary rule by adopting a charter, constitution and bylaws.
     Roberts said he had responded to Pumpkin's bid to convert the lands of
his followers to "a community holding and with some sort of modification of
earlier tribal ways of management and political direction." Instead of
submitting these suggestions to the UKB Chief, Roberts turned them over to
Principal Chief Milam of Cherokee Nation, "for any comments he might wish
to make." Roberts suggested it would be a wise use of Milam's position to
let him visit with Pumpkin's people and make recommendations. Roberts
recommended against the pooling of the restricted or allotted lands of
members of the Seven Clans Society "anywhere in eastern Oklahoma."
     Roberts closed with some general observations:
          Since the proposals for an organization of the Keetoowahs, Seven
     Clans, Four Mothers Nation, Goingsnake, and some two or three others
     have been presented in the last few months, they have had some
     investigation and study. While the study has not been exhaustive,
     examination into the areas where these desires originate discloses
     what amounts to a group of people with some Indian blood--not
     necessarily full blood--who appear to be frustrated and discouraged by
     circumstances around them. Frankly, this office is not impressed with
     any recommendation for communal approach to the difficulties. It is
     our thought that these manifestations of sociological dislocations are
     symptomatic of spiritual and economic bankruptcy. We believe it to be
     the responsibility of the Indian Service to do something about the
     situation. The political effect, however, of an effort, such as Mr.
     Pumpkin seems to have in mind, is certainly of doubtful value. It is
     our general belief that, if roads can be built through these isolated
     communities, if better school facilities can be developed, if a better
     use of credit and other economic resources is attempted, if the
     thoughts of the Indians are turned from within themselves to an
     awareness of the situation about them, if their action is really
     predicted on thinking rather than emotion, probably much can be done
     to reestablish satisfactory living conditions among them.
Finally, in denying the value of anything the UKB proposed, Roberts damned
the entire reorganization enterprise:
     Actually, no one could even approximate what these men want. They
     really are expressions of frustrated individuals who, for one reason
     or another, have not reached the degree of success or satisfaction of
     life that they seem to feel they are entitled to, and they are looking
     to some kind of past for their satisfaction. . . . Such are my
     reflections on the Keetoowahs, the Night Hawks, the Seven Clans, Four
     Mothers, Goingsnakes and other fragments of the past that, all but in
     the imperfect memories of old men, are gone forever.
Roberts, who never changed his attitude, clearly based his conclusions on
his own scant and reluctant personal contacts with the UKB, on his limited
understanding of social anthropology, and most lamentably, on his own
political attitudes and biases. Roberts's highly subjective and ill-
informed stab at a sociological and ethnological analysis of the Keetoowahs
was ludicrous, if not libelous. His failure to acknowledge or discuss in
his report the findings from over ten years of documented negotiations,
field studies and monitoring by the Organization Field Agents and his own
predecessor was stunning. His obvious preference for dealing with Principal
Chief Jesse B. Milam and plan of using the latter as a "handler" for the
UKB leaders is telling. It suffices to say, his superiors ignored his
suggestions. Burdened with a Superintendent in the field who was visibly
reluctant to live with the 1946 Act, Zimmerman did not get around to
dealing with the UKB issue himself for several months.
     On 27 July 1947, Levi Gritts stated in an interview for the Muskogee
Daily Phoenix the purpose of Keetoowah acknowledgment was not to be
mistaken for a reorganization of Cherokee Nation itself. He said, "If the
recognition had been as a Cherokee Tribe, or organization, it would have
had to include all the Negro and white persons living within the Cherokee
Nation." The "great number of Cherokee Indians as well as  . . . repeated
suggestions of personnel of the United States Indian Service" motivated
these decisions, and the organization effort had full support of the U. S.
Indian Service, reuniting the various Keetoowah factions, for the purpose
of organizing them under the OIWA and IRA. The question remained, exactly
who in the Indian Service was lending the reorganization effort "full
support."
     On 2 September 1947, Congressman Stigler reminded Commissioner
Zimmerman that he still expected the momentary arrival of the approved
Keetoowah charter.(See *: IV; File # 30869-1947) After a year of patiently
waiting, the United Keetoowah Band formally requested Secretary of Interior
William E. Warne's cooperation, as Congress had ordered. The Tribe insisted
that Warne approve the Tribe's Charter, and order preparations for a tribal
referendum on other Organic documents, so that the Tribe could conduct
business under OIWA [Letter, 19 September 1947, Chief James Pickup to the
Secretary of Interior; see *: IV] Senator Elmer Thomas of Oklahoma
forwarded a copy of the letter to the Secretary of Interior, J. A. Krug,
and prodded Krug to advise him when the Department intended to comply
[Letter, 24 September 1947; see *: IV] Oklahoma Congressman Stigler (2nd
District) also asked Acting Commissioner of Indian Affairs for the
Department of the Interior William Zimmerman what was holding up the
approval of the Constitution, concluding plaintively, "Will you please see
that this matter is giving immediate attention and advise me
accordingly?"[Letter, 25 September 1947; see *: IV] On 1 October 1947,
Tribal Relations Officer Erma Hicks forwarded a copy of the 19 September
1947 Pickup letter to Assistant Commissioner D'Arcy McNickle, asking for
his views on the UKB files. Citing difficulties in approving the roll for
the Tribe, the Assistant Commissioner indicated approval for the
Constitution would follow the UKB's approval of the roll. Secretary Warne
reported to Senator Thomas on the progress toward adoption of a UKB
Constitution and Charter [Letter, October 6, 1947; *: IV], echoing
Zimmerman's concern about the approval of the roll. In a letter that
probably was written by D'Arcy McNickle, Commissioner Zimmerman advised W.
O. Roberts, Superintendent of the Five Civilized Tribes Agency [Letter, 6
November 1947; see *: IV] that his office had reviewed the proposed
constitution and charter of the Keetoowah Band of Cherokee Indians along
with the legislative record, as well as the 21 July 1947 Roberts memorandum
about the UKB, and McNickle added:
     Your letter . . . suggests that the various factions making up the
     group are each striving to gain control of any organization that might
     be set up; indeed, to favor itself as the body referred to in the
     Keetoowah legislation. It was never the intention of the Office to
     favor any faction and we have acted all along on the assumption that
     the factions would come together in a united body. The list of
     individuals compiled in 1942 by the Organization Field Agents, Mrssrs.
     Ben Dwight and Albert Exendine, was understood to include individuals
     from the different groups; the committee submitting the list,
     consisting of John Hitcher, Nelson Too Late and Jim Pickup, was
     understood to be nonpartisan.
          The question of membership continues to be the basic problem. It
     is our view here that we should revert to the nine districts on which
     Keetoowah organization in the past has been based. . . . I suggest
     that the matter of membership be referred back to these districts. In
     order to achieve this I propose that a constitutional and membership
     committee be created at this time. . . . The districts should be
     called upon to elect representatives to the constitution and
     membership committee, which might then be convened at a time and place
     agreeable to all. As its principal order of business, this committee
     should pass upon the list of names, numbering 3,678, compiled in 1942,
     and determine whether this should serve as the basic membership roll
     or whether it should be corrected. If it is taken as the basic
     membership roll, the article on membership in the constitution might
     well provide that corrections could be made any time within a period
     of five years or other suitable period.
          After this question of membership has been settled, we will
     proceed to a consideration of the provisions of the constitution.
The Organization Field Agents moved in and tried to sort out the confusion.
As it happens, most members of the various Keetoowah groups at the time of
the 1942 UKB Roll were members of one or more of the other groups composing
the UKB. Having written this letter to Roberts, Zimmerman dashed off a note
of apology to Pickup for not responding the Chief's pleading letters about
approval of the UKB Charter. Zimmerman cited the Office's recent move from
Chicago as the reason he had been unable to answer. McNickle wrote a letter
for Zimmerman advising Pickup:
          The problem of organizing the Keetoowahs has not gone without
     attention, however. We recently wrote Superintendent Roberts and
     perhaps he has been in touch with you. We have asked that he examine
     further into the question of the basis of membership in the proposed
     Keetoowah organization and I am sure he will want to ask you to help
     in working this out. We will wait to hear further from Mr. Roberts.
     [*: IV; 18 November 1947]
Zimmerman and his staff based the conclusions in his 6 November 1947 letter
to Roberts on the UKB organization files that Organization Field Agents had
assembled between 1934 and 1947. It is possible that Roberts relied too
much on his staff to research and write this report, but that seems
unlikely, since Roberts appeared to base his report on his own field notes.
Roberts knew plenty about the UKB organization effort before his own
involvement, though he affected convenient ignorance. Roberts attempted to
scuttle the UKB reorganization effort using ignorance as an excuse. Roberts
later attempted to reverse the Tribe's successes. In claiming to have read
all the available materials on the UKB, Roberts had denied the existence
and implications of Organization Field Agent Exendine's 1942 UKB report,
which Exendine had forwarded through Roberts's predecessor, Superintendent
Landman, to Zimmerman. Roberts should have consulted with Zimmerman, the
UKB and others to discover whether they had files pertaining to the UKB
situation from his predecessor's tenure before panning the tribe's efforts;
as it turned out, Robert did contact others only after receiving
Zimmerman's response. Roberts's response to Zimmerman's letter proves that
Roberts knew he should have looked around for any pertinent files before
declaring UKB reorganization a pointless exercise. A reference copy of the
Organization Field Agent A. A. Exendine's memo to Zimmerman (*: IV, dated
26 October 1942, cited above) appears in the file accompanying Zimmerman's
response to Roberts, in which Zimmerman charitably ignored Roberts's
outburst, while suggesting pointedly that the Commissioner was well-aware
of Dwight and Exendine's field work.[See *: IV; the reference copy of the
Exendine memo was File # 38084, 2 December 1947; Zimmerman's response to
Roberts was File # 27285-47; all these materials appear in File # 43292-46-
Cherokee Nation-068]
     Roberts covered himself by reporting in his response to Zimmerman that
for several months, his office had devoted some time to "bring into more
active organization the several groups of Indians who have either organized
heretofore or are planning to do so," and that he was ready to favor the
Commissioner with a letter on the organization progress of the Keetoowah
Band of Indians. Roberts reported to Commissioner Zimmerman, alluding to
his lack of records, alleging that:
     The files of this office are incomplete and apparently the
     recollection of those who had to do with the organization is not too
     clear. . . . I have asked several of the members of the Cherokee group
     about information and their files. It would seem there is not much
     available from the organization. . . . If the Office has time to do
     so, I would like to have a little more complete resume of Office files
     in this matter. . . . I could have a photostatic copy of the map which
     you have made and return it to you. Otherwise, I do not know just how
     I can get the information as to what was in the thoughts of those
     arranging the plans for the organization. Doubtless, a good deal of
     work was done by Mr. Dwight, Mr. Xendine and others.[See *: IV; File
     # 35030, 10 November 1947, in Washington, D. C. and Fort Worth NARA]
Roberts did not mention whether he asked the tribe's permission to consult
with their tribal attorney, Earl Boyd Pierce, at his Muskogee office, a few
miles east of Muskogee; and considering that Mr. Pierce certainly had his
client-related files, as long as the UKB granted permission, Pierce
probably would have obliged Roberts by supplying copies of important
records related to the organization issue that remained in his custody.
Roberts described his investigations further, and offered an interesting
suggestion:
     I have talked with Mr. Perkins, Mr. Dwight, Mr. Hitcher, Mr. Jim
     Pickup and others, and we do not get a very connected story. It seems
     that a Constitution and By-laws were proposed, were acted upon
     properly by the so-called United Keetoowah Cherokee Band and that the
     Constitution and By-laws as presented were recommended for approval to
     the Secretary of the Interior, this action bearing date of February
     20, 1942. It appears that later on a statement of the officials of the
     organization under date of October 2, 1942, claim 3687. It then
     appears that some members of the Cherokee Tribe for reasons not clear
     sought to change the name of the group to the United Cherokee Band of
     Indians in Oklahoma. The files disclose that in the records with
     reference to the Keetoowahs [it] is marked in pencil or pen and that
     United Cherokee Tribe is the official name. It appears that in 1939 a
     convention for the purpose "of voting for or against a provisional
     Constitution" was called and that later on in August, 1940 another
     call "pursuant to the order of the United Keetoowah Band Council for
     the purpose of election of officers" and in this call "nine" districts
     were named.
          In October, 1946, I attempted to bring the officers of the
     Keetoowah group together for my information about the organization,
     plans and procedures. Rev. Jim Pickup answered the request in the form
     of a letter which he signed as Chief of the United Cherokee Tribe of
     Oklahoma, and later on in person, and I have been in frequent
     correspondence or personal discussion with Mr. Pickup since that time.
     My last discussion with him was today and in the discussion I asked
     several questions which I think need to be cleared up before we could
     comply with your letter of November 6. In some manner, the idea that
     there are "six" separate groups of the Keetoowah Indians has gotten
     into the correspondence and the thinking of some of those who are
     interested in the organization. While I did not have your letter at
     the time of my discussion with Mr. Pickup, it is clear that the
     membership element is not fully resolved, that there are rival
     organizations or at any rate difference of opinion as to who should be
     representative of the Cherokee Nation.
          The question arose some weeks ago in an effort to set out a means
     of selection of an Attorney to represent the Cherokee Nation in the
     matter of its claims, if any, against the United States before the
     Claims Commission. As matters now stand, the assumption is that there
     are "nine" groups of Cherokees, that each group should select a
     representative, and that all of the representatives should come
     together for the purpose of selecting the Attorney; however, it also
     appears that the Keetoowah group wants to make selection of their own
     delegates. It is obvious, of course, if they have 3500 members or
     more, and in fact Mr. Pickup claimed 5000, that they would overlap
     several of the communities - might have members in all "nine" of the
     divisions. It is, I think, accurate to say, however, that the whole
     Cherokee situation is shaping up in such a way as to be indicative of
     a general desire of a large number of the Cherokee people to join
     together in some kind of effort to protect the lands of members of the
     group, to try to do something about the education, the health of the
     neglected areas and to, as Mr. Pickup stated, help the Indian Service
     "to reach out and get to the Indians who need help."[Emphasis added]
Roberts addressed the distinctions among the various Keetoowah factions --
including in the United Keetoowah Cherokee Band the Keetoowah Society,
Inc., the Cherokee Immigrant Indian Group (a. k. a., Eastern Immigrant
Cherokees, Eastern and Western Cherokees, or "the Foster faction"), the
Four Mothers Nation, Seven Clans Society (a. k. a., Goingsnake Fire), and
the Medicine Society -- by seeking to blur those distinctions. Roberts
sought to avoid segregating the groups regionally, even though Wisdom and
others had pointed out that most of these groups had some particular
territory, though most had members in more than one county.(14: I) The
result was that the BIA expressly identified the UKB population with the
service-eligible (quarter-blood or more) and needy Cherokee population
remaining in 1946 within the old boundaries of Cherokee Nation. However,
Roberts lacked the map of territorial boundaries:
          We do not have a map delineating the "nine" divisions.
     Apparently, the map was made by Mr. Dwight and Mr. Xendine [sic!
     Interestingly, Roberts consistently misspelled "Exendine"'s name] with
     some help in this office. The original of it is apparently not here
     and we do not seem to be able to trace it.
A very poor photostatic copy of the map in question appears in the UKB
files in the National Archives. The district boundaries on the map, marked
in carmine pencil, resemble those of the old Cherokee Nation, and are the
same as the present boundaries, but the correspondence characterizes them
as the territorial districts forming the basis of the old Keetoowah
organization. Most of the population then, as today, resides within five
districts out of the nine, and within five Oklahoma counties out of the 14
in northeastern Oklahoma. Roberts knew that a tribe needed an identifiable
territory, even though in the case of Oklahoma, no reservation remained for
the UKB to claim. There still were restricted lands, trust lands and tribal
lands scattered about. It seemed sensible to use the various geographical
divisions or districts of the Old Cherokee Nation as UKB voting districts,
even though no particular faction was restricted to any of these individual
territories. Knowing that these various factions overlapped as many as five
of these old district lines in terms of the distribution of their
membership, Roberts hoped to forge unity among the factions by melding them
geographically, while allowing them to avail themselves of the plan
Zimmerman favored. Zimmerman wanted to allow the various bands of
Keetoowahs to obtain separate charters through the UKB itself, and function
under the UKB's federally-recognized umbrella (Article 3 of the 1950 UKB
Charter provides the means for factions to obtain these charters). What
remained was to bring the various Keetoowah factions together:
     Mr. Pickup has set December 10, 1947 as a time for bringing together
     all the officials and as many members of the Keetoowah group as he
     can. The meeting is to held at Hulbert, Oklahoma at 10:00 o'clock a.
     m. and will have wide publicity. I am arranging to be there and I
     would like to know, first, is there an approved Constitution and By-
     Laws in the Indian Office; second, is there a list of the 3687 names
     who are alleged to have joined in a vote for approval of the
     Constitution and By-laws and third, since the proposed Constitution
     and By-laws provided for a Chief, what, if any, effect will such
     position have in relation to that of the Principal Chief (Mr. J. B.
     Milam, Claremore, Oklahoma) appointed by the President?
The Principal Chief of Cherokee Nation was the trustee of Cherokee tribal
property, from which UKB property was not segregated in the 1946 Act, or by
secretarial action from then on. Forseeing the probability that the UKB
territorial boundaries would overlay or fall within those of the Cherokee
Nation, Roberts hoped to avoid balkanization of Keetoowah factions on
distinct land bases. He continued to hope that Jesse B. Milam, current
Principal Chief of Cherokee Nation, would take an active role in the
reorganization effort. Perhaps he hoped that Milam would run for, or better
yet, accept the office of Chief of the Keetoowahs over Pickup and the other
chiefs. After all, Milam was a member of the Keetoowah Society, Inc., which
apparently enforced no blood quantum requirement for membership. However,
since Milam had very little Indian blood, he was even less eligible at the
time for UKB enrollment than was the tribe's attorney, Earl Boyd Pierce,
who was one eighth Cherokee. Anyway, Milam, who already was in declining
health, was not interested in joining into the UKB's political fray. Milam
responded neither to the entreaties of the Superintendent nor of the
Commissioner, who urged Milam at least to take a position on the UKB and
its reorganization.
     Roberts made some interesting remarks about the "Cherokee group":
          It is my observation that the Cherokee group [it is unclear here
     whether he was referring to the Cherokee Immigrants, Eastern
     Immigrants, or Foster Faction, or the class of Dawes enrollees] is
     less organized, more disintegrated than the others. It seems to me,
     however, if we are to get the support from a considerable number of
     Indians in a live and active program in rehabilitation and social
     betterment, some kind of organization is indicated. Inasmuch as the
     Keetoowah organization has not only the benefit of law, but of several
     years' effort, it of course, would seem to me that we should revive
     and bring up to date the Indians' interest in this organization. I am
     sure that there is a growing interest in it, probably because of the
     questions I have raised, which I assume the Indian people are taking
     as evidence of official interest in the development of their
     organization. . . . I would like to be able to present to the people
     on December 10 a comprehensive outline of suggestions and plans for
     bringing the Keetoowahs into a full and effective organization.
Superintendent Roberts wrote to Commissioner Zimmerman again in about two
weeks to report additional findings (*: IV; Letter, 22 November 1947, File
# 38084):
          Rev. Jim Pickup has held several meetings of Indians at various
     points of the Cherokee country and has been in the office several
     times. He appears to be much interested in the completion of the
     organization of the Keetoowah group. . . . It is my belief that Mr.
     Pickup's ideas envisage an organization of the Cherokee people in a
     sort of fraternal society for mutual good will and social advantage.
     . . .
          Mr. J. B. Sixkiller . . . was present, giving me a rather
     extensive outline of the Keetoowah movement. He stated that it had all
     died out in the 30's, that the work of Mr. Xendine and others had had
     something to do with the reorganization of it, that he personally was
     an officer in the group about his home. He indicated the purpose of
     the organization is all inclusive of the interests of the Cherokee
     people, that while not all Cherokees are members, nevertheless, the
     Keetoowahs in his opinion are representative of most of the Cherokees,
     having members in all of the sub-divisions and that in a general way
     would be interested in the Keetoowah organization, but is skeptical of
     any worthwhile results because as he stated so many of the leaders are
     breaking away. It seemed to be Mr. Crawford's opinion that once a
     leader gets started he finds it difficult to work with other leaders,
     and that the organization tends to disintegrate into little groups,
     each with a leader. Mr. Crawford was especially displeased with Levi
     Gritts, a former organizer and leader of the Keetoowah group. Mr.
     Crawford stated and was corroborated by others that "Mr. Gritts had
     broke away from the main organization, that he wants to run
     everything."
          Further inquiry seems to indicate that Levi Gritts has separated
     himself and a group of followers from the main organization and that
     there is considerable opposition emanating from the Gritts'
     organization against the group dominated by Rev. Pickup, Mr. Sixkiller
     and others.
          I was informed that the organization of which Mr. Pickup is the
     present leader has employed an attorney, Mr. Earl Boyd Pierce of
     Muskogee, Oklahoma, who is to act as adviser and in behalf generally
     of the Keetoowah society [sic, "society" not capitalized].
          Mr. Eli Pumpkin, while not present at the Bull Hollow meeting,
     has several times indicated his interests in the Seven Clan Society,
     which seems to have close relation with another organization, more or
     less known as the Nighthawks. It appears that there are about thirty
     families who are followers of the Seven Clan Society, or Nighthawks in
     the northern Cherokee area. It is alleged that the Nighthawks have
     members throughout the Cherokee group. The aims of this group are to
     set up a territory similar to a reservation, placing the lands in
     restricted status, with title in the Federal Government for the group.
     It is probable that this group is the most conservative of all of
     them, inasmuch as the stomp dance and some other observations
     allegedly of an older period are still observed by these groups.
     Apparently, the Keetoowahs do not approve of the stomp dance while the
     Nighthawks do. There are of course other differences, but up to this
     time I am not aware of them.
          I found differences of opinion as to just where the list of
     members may be. Mr. Pickup thinks there are 5,000 members now. He
     admits, however, no very formal way has been worked out to admit
     members or to keep a list of approved membership.
          Mr. Pierce has been invited to discuss the Keetoowah organization
     which he proposes to do in the next few days. Inasmuch as all of the
     recognized leaders of the Keetoowahs have expressed the fact that Mr.
     Pierce has been selected as the spokesman for them, it appears
     advisable to wait to see what he has to suggest.
The UKB was so pleased with Earl Boyd Pierce's efforts regarding UKB
organization that the Band extended him full membership, although he did
not otherwise qualify for membership. Earl Boyd Pierce eventually became
linked with Principal Chief W. W. Keeler and the affairs of Cherokee Nation
of Oklahoma. The common perception among members of the UKB today is that
Mr. Pierce had a conflict of interest with respect his representation of
the UKB when he took Cherokee Nation's Executive Committee as a client. As
events progressed, Pierce worked to the advantage of CNO, and to the direct
detriment of the UKB, but in the beginning, he strongly supported the UKB,
as attorney and as enrolled member.
     McNickle advised Erma Hicks on 31 December 1947 that nothing
particular needed to be done in response to this memo for the time being
(*: IV; Memorandum, 12 December 1947, attached to File # 38084) McNickle
wrote for the Commissioner, responding to Roberts's 10 November 1947
letter:
     We have made a thorough search of our files and as far as we can tell
     the list of 3,687 names was never submitted here. I am not able to say
     who would have this list unless it would be Mr. Pickup or some member
     active in the organization efforts back in 1942.
          I am attaching our file copy of the map showing the nine
     divisions which, as I understand it, go back to the original
     territorial districts forming the basis of the old Keetoowah
     organization. [*: IV; Letter, 8 December 1947, File # 35030-47]
Zimmerman's letter advised Roberts:
          Neither this Office nor the Department has ever approved a
     constitution and bylaws for the Keetoowah organization, although we
     have a proposed constitution here. It was upon examination of this
     proposed constitution that the question on membership was raised.
Zimmerman's letter noted that before 1939:
     Mr. Frank Boudinot and Levi Gritts were both active at one time
     pressing for some type of organization. All discussions previous to
     the enactment of the Keetoowah bill were premature since there was not
     authority to recognize the group under the Oklahoma Act. We did urge
     Boudinot and Gritts to attempt to bring all factions together, since
     we were certain that if the Keetoowahs ever were to
     organize it would have to be done on the basis of all persons claiming
     affiliation with the Keetoowah idea or philosophy. In the beginning
     obviously it was a kind of select organization of relatively pure-
     blood Cherokees who were interested in maintaining Cherokee culture
     and custom and in opposing the efforts of the Government to destroy
     the tribe and the culture. Mr. Boudinot is now dead and Levi Gritts is
     opposed on personal grounds by a number of Cherokee Indians. Whatever
     his personal failings may have been in the past, you will find that he
     is full of the history of his people and if you have not previously
     talked to him, I suggest that you attempt to do so. He, better than
     anyone else that I know of, can explain the history of the Keetoowah
     movement. [*: IV; Letter, 8 December 1947, File # 35030-47]
Recall that in 1947, the Keetoowah Society, Inc., resumed its efforts to
obtain separate reorganization from the UKB  [Letter, 26 July 1944, Gabriel
Tarepen to Commissioner of Indian Affairs William Zimmerman, Jr., in
Central Classified Files of the BIA, Department of Interior. Box 463.
Accessions 56A-588. Records for 1948-1952. Five Tribes. 010. Legislation
(011.-015). File # 29941-44] The Oklahoma congressional delegation
responded to the requests of the United Keetoowah Band, but not the
separatist requests of the Keetoowah Society, Inc., or of any other group.
Whatever else the Keetoowah Band was as of 1947, it was no longer a
creature of the Keetoowah Society, Inc., or of any other particular
Keetoowah faction. Zimmerman clearly intended to keep things that way:
          I would not say that we should refuse to cooperate in forming an
     organization if the plans do not include all members of the Keetoowah
     group, but I should hesitate to give any encouragement to any
     factional organization. [*: IV; Letter, 8 December 1947, File # 35030-
     47]
To help clarify things for Roberts, Zimmerman sent him the Department's
file copy of the draft UKB Constitution and Bylaws, adopted in 1939 and
revised in 1942, along with Charles Wisdom's history of the Keetoowahs.(14:
I) The Wisdom study presumably had been the primary source for the 1937
opinion of Frederic L. Kirgis, Acting Solicitor to the Commissioner of
Indian Affairs, which found the Keetoowah Society was not a body eligible
for reorganization under OIWA. The purpose of the Department's UKB
organization work between 1937 and 1947 was to drive the various factions,
none of which was dominant and none of which was able to reorganize without
the others, into a united body within a distinct territory that disregarded
any geographic, social or unique philosophical or religious boundaries
individual factions might have claimed up to that time. Wisdom reported in
his 1937 narrative on the Keetoowahs that the "Nighthawk" faction of the
Keetoowah Society alone was "an organized and functioning social entity,"
and only that entity had to be dealt with as "a distinct and independent
community" by the Indian Office.(14: I) On the other hand, his own
narrative shows the "Nighthawks" experienced a 90% erosion of membership as
factions erupted from this particular group between 1906 and 1937. As a
highly syncretic cult (combining elements of true Cherokee traditions with
identified Creek, Oneida, Quapaw, and fundamentalist christian and other
elements), the Nighthawks represent the most polarized Keetoowah religious
faction. Voluntarily isolated in a relatively well-defined and contiguous
territory, and subscribing to strict rules and demanding membership
requirements which based membership eligibility upon the applicant's
matrilineal (clan) lines, Redbird Smith's "Nighthawk" Keetoowah Society
could not represent or affiliate with the other groups, and never wanted to
do so after 1924.
     The unambiguous intent of Congress in 1946, and of the UKB and the
Indian Service in 1948, was that the United Keetoowah Band's membership was
to be inclusive, in the first instance, of only part of the Cherokee
descendancy, whose political interests remained distinct from those of
Cherokee Nation-related organizations (the Executive Committee and
Executive Council).
     The UKB attempted to keep Superintendent Roberts informed and involved
in their deliberations, and they invited him on 12 December 1947 to their
regular meeting, in Delaware County, at the Bull Hollow C. C. Camp and
Community House.(72: IV) Having just received the 11 December 1947
instructions of Commissioner Zimmerman to investigate the UKB further, to
ascertain their purposes, membership and other information, he responded
very cordially, agreeing to attend, adding: "I am giving a good deal of
study to the Keetoowah organization. I think there is a good opportunity to
complete the organization work of this group, provided the people wish to
affiliate with it." The Indian Service, he said, was studying the UKB
membership issue. Roberts briefly indicated the difficulties at hand:
     The early organization work appears to have been prior to the
     enactment of the Keetoowah bill. Therefore, there was no legal basis
     for the organization. Another complication is the fact that much of
     the correspondence is divided -- some of it discusses the Keetoowah
     Band, some the United Keetoowah Band and some of it the United
     Cherokee Tribe.
          From the correspondence in this office, I am inclined to believe
     that there are differences between the Keetoowah Band and the Cherokee
     Tribe, that they are not one and the same. The correspondence also
     makes reference to a Nighthawk group or band.(70: IV)
To that last paragraph, one might suppose Chief Pickup observed, "Comes the
dawn." It is particularly interesting that here, Roberts admitted to having
a body of correspondence in his office that led him to these conclusions
about the UKB. Perhaps, as his interest had grown, Roberts finally had
discovered the forgotten treasures in his files. He continued:
          I think we should need to know pretty definitely what the
     Keetoowah group really is and the ideas and philosophy which draw the
     people to it.
          Furthermore, I would like to have several names of other leaders
     or interested persons so that you and they might give me a better
     basis of estimating the purposes and possibility of organization of
     the Keetoowah group.(70: IV)
Roberts and Pierce exchanged very cordial letters, indicating their
eagerness to work together "perfecting the organization" of the UKB.(62:
IV)
     Early in 1948, Superintendent Roberts reported to Commissioner
Zimmerman regarding his conference "of about one and one-fourth hours" with
"Rev. Jim Pickup, who is the Chief of the United Keetoowah Band of Cherokee
Indians, and his Attorney, Mr. Earl Boyd Pierce, on the subject of
perfecting the organization of the Keetoowahs and of visualizing the place
of this organization in the affairs of the Cherokee Indians. Roberts
obviously was quite taken with Pierce:
          In the outset, may I express appreciation of the high order of
     Attorney Pierce's comments, observations and recommendations. I truly
     believe him when he stated that his interest and work has been out of
     affection for the Cherokee people rather than any personal reward. Mr.
     Pickup says frankly that as yet he has paid his Attorney nothing at
     all.(73: IV)
Roberts appears to have learned more about Keetoowah history from this one
conversation than from any other source:
          It is the point of view of Mr. Pickup and Mr. Pierce that the
     original group was known as the Keetoowah Society; that it was under
     the sponsorship, or at any rate close interest of Mr. Frank Boudinot,
     a member of the Cherokee Tribe and [an] Attorney who lived in
     Washington for many years. His local representative was Mr. Levi
     Gritts, a near full blood Cherokee Indian. I am informed that the
     Keetoowah Society was incorporated under the laws of the State of
     Oklahoma and granted a Charter about 1920. There is no record of this
     Charter in the Muskogee office.
          I am further informed that the Keetoowah Society continued
     through the years with more or less interest until an election in
     1939, at which time there were two candidates for the position of
     Chief of the Keetoowah Society; Mr. Levi Gritts, who was undoubtedly
     the preferred candidate of Frank Boudinot and the group of Indians
     over whom Mr. Boudinot had more or less influence; the other candidate
     was John Hitcher, a respected and intelligent full blood Cherokee, and
     who was elected to the position. Mr. Hitcher died in 1946 and was
     succeeded in office by Rev. Jim Pickup. Mr. Pickup's Chieftainship was
     verified by popular vote last year.
          I am further informed that shortly after the election of 1939,
     Levi Gritts gave public notice of his withdrawal from the Keetoowah
     Society as represented by John Hitcher and others, and that he started
     an active opposition to the leadership. Because of the opposition
     aroused by Levi Gritts, it became necessary on the part of forward
     looking leaders to resolve if they could the differences, but no such
     resolution has as yet been effected.
          Mr. Gritts claims to represent the Keetoowah Society. The efforts
     of many other leaders to bring about unity resulted in their taking
     the name of the United Keetoowah Band of Cherokee Indians. This is the
     name to which Rev. Pickup subscribes; Attorney Earl Boyd Pierce, Mr.
     Sixkiller and a number of other Indians espouse the completion of the
     Keetoowah organization. In other words, Mr. Pickup's organization is
     referred to as the United Keetoowah Band of Cherokee Indians. Mr.
     Gritts' organization is referred to as the Keetoowah Society.
          It further appears that the Keetoowah Society has a small
     membership, total number unknown, the guess being anywhere from 100 to
     200. The United Keetoowah Band is estimated to have a membership of
     5,000, more than 3,500 of whom have actually signed a membership
     indication.
          The records of this office bear out the verbal statements of Mr.
     Pickup and Mr. Pierce that the election of John Hitcher was well
     advertised, the provision was made in each district of the whole
     Cherokee group for the preferential expression of the body and that
     John Hitcher was fairly elected by a very considerable majority. It
     further appears that practically all of the former followers of Levi
     Gritts deserted him because of his tendency to secede.(73: IV; 28: IV)
The Oklahoma congressional delegation responded to the requests of the
United Keetoowah Band, but not the separatist requests of the Keetoowah
Society, Inc., or of any other group. This is the first correspondence
clearly indicating that Roberts was comprehending the UKB's character and
circumstances. Roberts continued:
          It further appears that some effort on the part of the personnel
     at the Five Tribes to reconcile the differences of groups resulted in
     the modification of the proposed contract which changed the terms of
     it all to the United Cherokee Band. According to my informants, this
     proposal entirely missed the point.
          Summarizing the point of view expressed today, the United
     Keetoowah Band of Cherokee Indians is and should be the representative
     body employing the Keetoowah name. There is a membership of upwards of
     5,000 people in the organization. Not necessarily all Cherokees belong
     to this group, nor do they all desire the Keetoowah ideas.
     Furthermore, I am informed that the Keetoowah idea in its inception
     springs from divergent points of view. Originally, the Keetoowahs
     represented in effect the north wing of the Cherokee Tribe. They were
     principally the full blood or high degree and Indian blood and their
     general thought was loyalty to the Government which they recognize as
     "the north." They sponsored retention of the Cherokee traditions and
     opposed the endorsement of white culture out of the theory that it was
     in the latter sense a deviation from the true Indian principle that
     resulted in part of the Cherokees joining forces with the Southern
     Confederacy.
          I am informed that the very modern concept of the Keetoowah idea
     is [Civil War] Republican; that the Nighthawks and the rest of Texas
     Cherokees and Arkansas Cherokees and what-not are [Confederate-Era
     styled] Democrats. This rather amusing text is seriously indicated by
     Rev. Pickup who by the way is always of serious mind and demeanor.(28:
     IV)
The delicate question of the relationship between the UKB and Cherokee
Nation and Cherokee Tribe remained, and Pierce offered a clarifying
statement. In his remarks, Pierce hinted at the possibility that the UKB,
in his view, could become (or provide) the vehicle for the restoration of
Cherokee Nation:
          There was some discussion as to how the Keetoowah gr