Copyright © 1995-1998 NLThomas
All Rights Reserved
Written by Allogan Slagle for the United
Copyright © 1993 Allogan Slagle
BURNING PHOENIX: A Study of the Federal Acknowledgment, Reorganization and Survival of THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA, and of CHEROKEE NATION OF OKLAHOMA'S Efforts to Terminate the Band ALLOGAN SLAGLE, FOR THE UKB: 1993 THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA AND ITS INTERGOVERNMENTAL RELATIONSHIP WITH THE UNITED STATES (COPYRIGHT ALLOGAN SLAGLE 1993) ACKNOWLEDGMENTS AND DEDICATION FOREWORD AND ABSTRACT A BRIEF UKB CHRONOLOGY 1. THE STATUS OF THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA UNDER THE FEDERAL ACKNOWLEDGMENT CRITERIA AT 25 CFR 83.7....1 2. THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA AS A MODERN AUTONOMOUS TRIBAL ENTITY............................................17 3. KEETOOWAH COHESIVENESS AND CONTINUITY AFTER 1906.................33 4. THE UNITED KEETOOWAH BAND, IRA, OIWA, AND THE "KEETOOWAH SOCIETY, INC., OPINION"(1937)................................................40 5. THE ACT OF AUGUST 10, 1946.......................................59 6. LAND ACQUISITION RIGHTS, OIWA, AND THE ACT OF AUGUST 10, 1946....95 7. APPROVAL OF THE UKB CHARTER, CONSTITUTION AND BY-LAWS...........100 8. THE OCTOBER 3, 1950 UKB REFERENDUM..............................111 9. THE UKB DURING THE TERMINATION ERA..............................116 10. THE BELLMON BILL AND THE "REVIVAL" OF CHEROKEE NATION..........152 11. THE ATTEMPTED TERMINATION OF THE UKB...........................165 12. POSTSCRIPT.....................................................199 13. APPENDIX I: SCHOLARLY MONOGRAPHS, THESES AND DISSERTATIONS, CHEROKEE GOVERNMENT DOCUMENTS, PUBLICATIONS AND OTHER WRITINGS..............226 14. APPENDIX II: DOCUMENTS, LAWS AND RESOLUTIONS OF THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA...............................230 15. APPENDIX III: BIBLIOGRAPHY -- TREATIES, AGREEMENTS, STATUES, REGULATIONS, RULES, OPINIONS AND CASES.............................238 16. APPENDIX IV: GOVERNMENT DOCUMENTS OF THE UNITED STATES.........275 17. APPENDIX V: BIBLIOGRAPHY -- AVAILABLE MINUTES AND OTHER MATERIALS RELATING TO UKB MEETINGS EVINCING CONTINUOUS GOVERNMENTAL FUNCTIONS AND POLITICAL ACTIVITY.................................................312 18. APPENDIX VI: BIBLIOGRAPHY -- THE CNO REGISTRATION/ DESCENDENCY LIST AND THE UKB ROLL; SECRETARIAL APPROVAL OF UKB ENROLLMENT DETERMINATIONS; SECRETARIAL AUTHORITY OVER IRA ELECTIONS; RECOMMENDATIONS...........198 A, D ACKNOWLEDGMENTS This narrative is a response to the requests of staff of the United States Congress and the Tribal Council of the United Keetoowah Band of Cherokee Indians in Oklahoma (UKB) for an explanation of the UKB's history and circumstances. The document demonstrates the continuous historical existence of the UKB since recognition, and the Band's autonomy from any other political entity or any non-governmental social or religious organization(s) that use the names "Keetoowah" or "Cherokee." The author gratefully acknowledges the support of generations of UKB leaders and members, the Officers and Council Members of the UKB and their families, Frank Boudinot and Levi Gritts, Dr. Georgia Leeds and other scholars and friends, Acting Secretary Abe Fortas, and especially D'Arcy McNickle. The author thanks others who have contributed to the compilation of source material for this narrative. The author also wishes to acknowledge the support of Keetoowah councilmen, staff, and members whose contributions and editorial suggestions made the completion of this narrative possible. * * * * * * * * * * * * * * * DEDICATION: * * * * TO THE ETERNAL KEETOOWAH PHOENIX AND TO HER CHILDREN AND TO D'ARCY MCNICKLE WHO SAID THE EMPEROR WAS NAKED * * * * AND POINTED * * * * * * * * * * * * * * * * * * * * * * * * * * * * * T TALKING POINTS 1) Federal legislation greatly diminished the inherent sovereignty of Cherokee Nation, leaving certain, primarily administrative functions intact (1890-1906), under the direct supervision of the President and his agent, generally the Secretary of the Interior. References to the "dissolution" of the Cherokee Nation government appeared in the history and in the language of certain legislation. The government was essentially dissolved, with the exception of certain residual powers, on 4 March 1906. 2) Having failed at efforts to keep a tribally-elected, rather than presidentially-appointed, Cherokee government in force, the Keetoowahs realized that they were on their own, and resolved to rely on their original governmental form, the foundations of which they brought with them to Oklahoma. Keetoowah Society, Inc., in anticipation of the eventual dissolution of the Cherokee Nation, acquires a Federal Charter (20 September 1905; see 24 April 1944 determination of D'Arcy McNickle, Tribal Relations Branch). 3) Subsequent Federal legislation restored certain aspects of the inherent sovereignty of Cherokee Nation, dealing with administrative functions, in order to protect residual property interests (1906-1930s). 4) Acting Solicitor Frederic L. Kirgis found the Keetoowah Society ineligible to reorganize under OIWA and IRA.(Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs: 1917-1974, Vol. I (Washington, D. C.: U. S. Department of the Interior, 1975), p. 774; Opinion, Keetoowah -- Organization as a Band 29 July 1937) 5) The Department of the Interior found the Cherokee Nation, organized under the revised 6 September 1839 Constitution, a government essentially dissolved in 1906, to be ineligible as such to reorganize under OIWA and IRA. Field investigators found Cherokee citizens, with the exception of the Keetoowahs, have abandoned tribal relations and have no interest in reorganization.[MEMO TO INDIAN ORGANIZATION, 25 October 1937, from Director of Lands (WDW) to Daiker, Indian Organization (enclosure 1310901)] 6) The Keetoowah Society, Inc., and other Keetoowah factions, started organization work under the supervision of A. C. Monahan, Regional Coordinator for Organization at Five Civilized Tribes Agency, upon the discovery that indeed the Keetoowah Indians had a basis for claiming historical existence as a recognized polity of Indians, August 1939. Investigators later find Kirgis was ignorant of the existence of the 20 September 1905 Keetoowah Society, Inc. Federal Corporate Charter, and its legal effect. In a determination of 24 April 1944, Tribal Relations Branch officer D'Arcy McNickle categorically repudiated the Kirgis Opinion, and in a meeting on 5 June 1944 with BIA Chief Counsel Ted Haas, agreed that rather than simply ask the Solicitor to rescind the old Opinion and submit another, that the Department would recommend to the Secretary and Congress that Congress pass legislation to clarify the T status of the Keetoowah Indians, thereby allowing the Band to reorganize under OIWA and IRA. 7) Congress, on the advice of the Acting Secretary and other agencies, passed the 10 August 1946 Act acknowledging the UKB's eligibility to reorganize under OIWA and IRA. The legislative intent and statute itself contemplate recognition of a united entity, initially a coalition government. 8) UKB reorganized under OIWA and IRA, adopting a Charter, Constitution and By-laws in a Federal secretarial election on 3 October 1950, and proceeded to function with virtually no Federal assistance as a federally-acknowledged tribe. The Charter provided for the eventual recognition by sub-charter of any other Cherokee descendant group with whom its own members are allowed to share membership, at the discretion of the UKB Council. During Termination, the BIA refused to cooperate with every development proposal in keeping with the OIWA and IRA that the UKB Tribal Council submitted. 9) After 1960, the BIA and Cherokee Nation or Tribe investigated the possibility of establishing services and programs for Cherokees in the 14 county region, formerly Cherokee Nation, concluding that the only possible solution was to make the UKB the vehicle for providing programs and recognition. 10) Once Cherokee tribal programs were off the ground, the UKB had little success retaining control of the very programs they fostered, and even access to services. Independent ventures failed as well, partly due to the (documented) collusion of their own legal counsel, Earl Boyd Pierce, with BIA and CNO officials to stop the UKB. 11) The Act of Oct. 22, 1970, 91st Cong., 2nd Sess., P. L. 91-495, 84 Stat. 1091 (1970), the Bellmon Bill, "Authoriz[ed] Each of the Five Civilized Tribes of Oklahoma to Select Their Principal Officer . . . ." Federal court challenges determined that the presidentially - or secretarially - appointed Principal Chiefs of Cherokee Nation since 1906 were bona fide heads of state. Other litigation addressed the question whether the Cherokee government was terminated in 1906. On 2 October 1975, Commissioner Morris Thompson and Principal Chief Ross O. Swimmer approved a draft CNO Constitution determining that the automatic citizenship class shall consist of the Cherokee Dawes Commission enrollees, and that descendants shall be eligible for registration as member-descendants. 12) Commissioner Louis Bruce, in American Indian Tribes and their Federal Relationship, Plus a Partial Listing of other United States Indian Groups (Wash., D. C.: U.S. Dept. of Interior, BIA, March, 1972) declared that the UKB is a fully recognized Class 1 OIWA/IRA tribal entity, while Cherokee Nation remained an unorganized Class 3 service population. T 13) On 5 July 1976, Cherokee voters adopted the draft Constitution, purporting to supersede the 1906 constitution, but CNO leaders claim in Federal court that the old Constitution was dead in 1906, or that the present government is the full successor to the 1839 - 1906 government, as circumstances demand. The 1976 Constitution purported to sanction affiliation of any CNO registree with any "clan" or other subordinate entity within CNO. The Harjo case determined that the 1906 and related Acts did not terminate the Five Tribes as such, and that the 1936 Act assured them the enjoyment of their inherent sovereignty, as a general principal. That case did not consider or discuss the 25 October 1937 Land Division determination regarding the eligibility of Cherokee Nation to avail itself of the benefits of OIWA and IRA, or contain any reference to the intent of Congress, the BIA and the UKB regarding the implications of UKB reorganization. No provision at Federal case law, and no Act of Congress, allowed CNO to avail itself of the benefits of OIWA and IRA reorganization free of the duty of actually taking the steps to reorganization. 14) In the Federal Register, Vol. 44, No. 26, Tuesday February 6, 1979, pp. 7235-7236, the Secretary of the Interior listed the UKB as a federally-recognized, service-eligible entity. The Department has since characterized this and similar publications as binding determinations of the Department regarding the recognition of tribes, both in Federal litigation and in congressional hearings. 15) Characterizing the organization of federally-acknowledged tribes listed in the 6 February 1979 Federal Register notice, on 20 November 1979, Ms. Patricia Simmons, Tribal Relations Specialist, submitted to the Chief, Branch of Tribal Relations, a detailed report titled, "Organizational Status of Federally Recognized Indian Entities." Simmons surveyed a category (p. 2) of "Officially Approved Organizations Pursuant to Statutory Authority (Indian Reorganization Act: Oklahoma Indian Welfare Act; and Alaska Native Act), finding (p. 3), UKB had a Council organized under a Federal Corporate Charter. Cherokee Nation (with a Council) was listed iIn the "Other" category of "Officially Approved Organizations Outside of Specific Statutory Authority," (p.7). 16) Principal Chief of Cherokee Nation Ross O. Swimmer denied UKB's historical existence for the first time of record to Oklahoma Senator Henry Bellmon, in a Letter, 27 April 1979. Swimmer claimed the UKB was "created" by the accidental inclusion of their name in the 6 February 1979 Federal Register notice; see also Letter, 30 April 1979, Principal Chief of Cherokee Nation Ross O. Swimmer to Oklahoma Senator David Boren, denying UKB's historical existence. F FOREWORD At the end of this narrative, the author will reflect upon the implications of the title. At the outset, it is appropriate simply to note that the UKB long has applied the metaphor of the Phoenix rising from ashes to describe its own character and destiny. An account of the attempts of the modern Cherokee Nation of Oklahoma government to usurp the UKB's "nest" -- the Band's sovereignty, property rights, opportunities, character and destiny -- are as important to this narrative as the story of the Band's reorganization. The Postscript will reflect upon the implications of the Burning Phoenix as a living metaphor for the UKB in the face of termination. A BRIEF UKB CHRONOLOGY A BRIEF UKB CHRONOLOGY PRECONTACT TO 1730s: Ani-gi-du-wah-gi, the Keetoowah People, find their source at Keetoowah, a Mother Tribal Town in Swain County, North Carolina, and its affiliated smaller towns. Political succession proceeded through elected Captains, a Chief, and Beloved Women. 1730s TO REMOVAL: Despite cultural and political disruption between the American Revolution and the Removal period, the Keetoowah Indians retained what they could of their primary rules and ways. They enforced laws through customary sanctions and the law of blood, maintaining their own local tradition despite major changes in general Cherokee society. The Keetoowah Indians were part of the core Red/War groups who had allied with the French. Some began to move to what became Arkansas territory as early as the end of the Seven Year War in 1763. The Keetoowahs who allied with the British during the Revolution joined that first wave of emigrant Keetoowahs. The Chickamaugas followed after their attack on a white trading party at Muscle Shoals, Tennessee River, in 1794. They all settled among the Western Cherokees (Old Settlers). The U. S. officially recognized Western Cherokee Tribal Council and their territory in 1817. Other Keetoowahs followed, first to Arkansas and then to Indian Territory. By 1819, they numbered about 6,000. The U. S. Supreme Court established some of the most important case law regarding Cherokee Nation during this period: Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1 (1831). Worcester v. Georgia 31 U. S. (6 Pet.) 515 (1832). 1838-1839, FORCED REMOVAL TO ARKANSAS AND OKLAHOMA: The remnants of the War Party in the eastern states were too weak to oppose structural changes in Cherokee government. As removal of the Eastern Emigrants proceeded, the Keetoowah Indians lived as they always had, relying on subsistence agriculture, fishing and hunting, practicing the old religion, maintaining social cohesiveness at various towns in Cherokee territory, with gatherings and daily interactions across factional and family lines. The Western and Eastern Cherokees were forced to form a coalition government under a Constitution dated 6 September 1839. John Ross (Chief from 1828-1866) maintained support from the Keetoowah traditionals because of his opposition to removal and his marriage to a fullblood. 1838 to 1860, KEETOOWAH REORGANIZATION IN OKLAHOMA: Knowing that Civil War would threaten their government and society, and committed to honoring treaties with the U. S., Keetoowahs reorganized under a Constitution written by a fullblood Cherokee Baptist Minister, Budd Gritts (1858-1859). Followers of the Jones family (non-Indian church leaders) also were instrumental in the reorganization of the Keetoowahs in the 1850s. Starting from a base of born Keetoowahs, the band drew in and adopted fullbloods from all nine Districts, but primarily from a region composing five northeastern Oklahoma counties today. Called the Keetoowah Society, they revived the role their Mother Town of Keetoowah enjoyed in pre-contact and pre-Removal historical times. Their leaders were "Captains," under a Head Captain, or "Chief." In 1857, the War Department offered the town the military reservation of Fort Gibson, from which the Cherokee Council created the town of Keetoowah. The Cherokee Council voted to move the Capitol there from Tahlequah, but Chief Ross vetoed the plan. The Keetoowahs elected Louis Downing their Head Captain, and later helped him to victory as Principal Chief. 1860-1865, KEETOOWAH INDIANS IN THE CIVIL WAR: All loyal Keetoowahs opposed the Southern Confederacy and supported the Union. The Pin Indians, a particularly aggressive faction, fiercely resisted assimilation and invasion by all non-Indians. The Council of Keetoowah town (Fort Gibson) met until May, 1863. Convening at Cowskin Prairie that year, the Keetoowahs denounced the Confederate Cherokees and celebrated the abolition of Slavery. While the Keetoowah Indians remained loyal to the end of the Civil War, they shared the common humiliation of all Cherokees resulting from the punishment of Cherokee Nation for its official alliance with the Southern Confederacy. The 1866 Treaty abrogated all others to the extent they were inconsistent, but the Keetoowah delegates to the Treaty convention reluctantly signed. 1866-1890, UKB FACTIONALISM AND CONFLICT: Immediately after the Civil War, conflicts arose over the purposes and direction of the Keetoowah organization. While some Keetoowahs wanted to preserve the ancient Keetoowah culture, language and religion in pure form as possible, others preferred to amalgamate the old ways with aspects of non-Indian culture, including christianity. (The Cherokee Tobacco 78 U. S. 616 case was decided in 1871.) The Keetoowahs elected Dennis Bushyhead as Principal Chief in 1879 and 1883. One political party called itself the Keetoowah Party in 1879 in order to win fullblood votes. The Society lost controlling influence in tribal politics with the increase of intermarriage and the increasing influence of mixed- bloods. In 1887, the General Allotment Act (Dawes Severalty Act) authorized the allotment of tribal lands to individual Indians and families. The Act did not apply to Cherokee Nation (24 Stat. 338, Sec. 339, 1887). The land of Cherokee Nation had to be allotted through an agreement in 1901, following actions of the U. S. to limit the sovereignty of Cherokee Nation. The 1889 Act established Federal courts in Indian territory, conferring limited civil jurisdiction on tribes, and criminal jurisdiction over certain crimes, excluding only Indian vs. Indian matters from Federal jurisdiction. The Act terminated certain of Cherokee Nation's governmental powers over prescribed territories and over its citizens. In 1889, reacting to the threat of allotment, the political mission of the Society altered when a convention amended the 1859 Constitution to include both religious and sectarian functions, and to allow open meetings. All claimed to worship the same God, as Keetoowahs. 1890s to 1901, PREPARATIONS FOR STATEHOOD; THE CHEROKEE AGREEMENT, AND THE DISSOLUTION OF INDIAN TERRITORY AND CHEROKEE NATION, AND ALLOTMENT: Congressional investigations from the 1870s forward confirmed widespread corruption in the Indian Service and the Five Tribes governments. Proponents of Oklahoma statehood pressed for elimination of the original tribal governments in the 1880s, seeking control of land, oil, and minerals. The 1893 Act created the Five Tribes Commission to negotiate with the Five Tribes for extinguishment of tribal title in order to facilitate the creation of a state of Oklahoma in Indian Territory, and starting the allotment process. Proponents of an Indian State of Sequoyah lost. The 1895 Act extended Arkansas criminal laws over Indian territory, leaving intact exclusive tribal jurisdiction over tribal members. The 1897 Act conferred civil and criminal jurisdiction on the United States courts in the territory over all persons regardless of race, in addition to imposing the laws of Arkansas and the United States throughout Indian territory. The Five Tribes Commission concluded negotiations without the cooperation of the Five Tribes, making the Curtis Act of 1898 inevitable. The Curtis Act (1898) forced the Five Tribes to allot their lands. This Act seriously and deliberately weakened the Five Tribes' governments. The Act granted territorial towns the right to establish municipal governments under the laws of Arkansas, rendered the civil laws of the tribes unenforceable in Federal courts, and abolished tribal courts. The Act prohibited payments by the United States to tribal officers for disbursement to tribal members. The Creek, Choctaw and Chickasaw tribes benefitted from the incorporation of provisions of tentative agreements with these tribes, providing that if the several agreements were ratified by these tribes, the provisions of the respective agreements would replace conflicting provisions of the Curtis Act. The Cherokee Nation had refused to negotiate a tentative agreement, and took the full body blow of the Curtis Act. Though all Keetoowahs opposed allotment originally, the Keetoowahs split over how to handle the issue after Cherokee Nation's 31 January 1899 election on the Cherokee Agreement. The mixed-bloods of Cherokee Nation won in the popular election to approve the agreement, and Congress ratified the it on 1 March 1901 (31 Stat. 848). The agreement provided that Section 13 of the Curtis Act would not apply to Cherokee lands, and that "no Act of Congress or treaty provisions inconsistent with this agreement shall be in force in said nation" except Sections 14, 27 and 28 of the Curtis Act. These authorized the incorporation of towns, the location of Indian inspectors in Indian Territory, and abolished tribal courts. The Agreement did the following: 1) Prescribed the manner of the allotment of all Cherokee land; 2) Prescribed the manner of establishing town sites under the supervision of the Secretary of the Interior, including sale of town lots; 3) Established schools; 4) Continued the Cherokee Advocate newspaper; 5) Reserved land for town sites, churches, cemeteries and the like; 6) In Section 58, provided that "The tribal government of the Cherokee Nation shall not continue longer than March 4, 1906, subject to such future legislation as Congress may deem proper;" 7) Conferred U. S. citizenship upon Cherokees; 8) In Section 72, provided that "Nothing contained in this agreement, however, shall be construed to revive or re-establish the Cherokee courts abolished by said last-mentioned Act of Congress (Curtis Act), or the authority of any officer, at any time, in any manner connected with said courts;" 9) in Section 75, provided that "No act, ordinance, or resolution of the Cherokee national council in any manner affecting the lands of the tribe, or of individuals after allotment, or the moneys or other property of the tribe, or of the citizens thereof, except appropriations for the necessary incidental and salaried expenses of the Cherokee government as herein limited, shall be of any validity until approved by the President of the United States." This Agreement effectively placed the Cherokee Nation under the direct management of the United States. In November 1899, the Keetoowah Society convened in Tahlequah to pass resolutions critical of the Cherokee Council and the Dawes Commission, particularly with regard to plans to dispose of Cherokee land and to create a roll without the consent of the Cherokee Nation. They challenged amendments to the Constitution, and resolved to enroll only under protest. The Keetoowahs in convention at Big Tucker Springs on 6 September 1901 decided to enroll with the Dawes Commission led to a final schism between Keetoowah factions. Redbird Smith left the meeting with eleven of his traditionalist supporters to resist enrollment actively, forming the Nighthawk Keetoowahs. Several hundred Keetoowah Indians, including several groups that started out as members of the Keetoowah Society and left with the Nighthawks in 1901, coalesced to form a number of secretive, traditionalist, exclusive factions. Most of these groups started near Gore, Vian, or Proctor, and adjoining areas. These groups were nascent within the Keetoowah Society as early as 1893, and derived from Goingsnake fire or various of the Four Mothers Nation fires. Like the Nighthawks, these groups generally refused until 1910 or later to accept the work of the Dawes Commission. While they fully intended to maintain tribal government and functions regardless of the fate of the Cherokee Nation, the Keetoowahs as a body officially acquiesced under protest to the effect of all the legislative provisions that would dissolve Cherokee Nation's government and allot Cherokee lands. They learned that they could not prevent the 1893 Act, the Dawes Commission enrollment, U. S. citizenship, the Curtis Act and the abolition of tribal courts, the Agreement with the Cherokee Nation of April 1, 1900, the 1906 Act and the virtual political dissolution of the corrupt Cherokee government as of 4 March 1906, presidential approval for all tribal ordinances affecting tribal or individual lands after allotment, and the allotment in severalty of Cherokee lands. See Cherokee Nation v. Southern Kansas R. R. 135 U. S. 641 (1890) and Cherokee Nation v. Journeycake, 155 U. S. 196 (1894). 1901 TO 1906, THE FIVE TRIBES ACT, AND THE REORGANIZATION OF THE KEETOOWAH SOCIETY, INC., THE CREATION OF THE NIGHTHAWK KEETOOWAHS, AND OTHER FACTIONS: During this period, the Keetoowah Indians lived throughout most of the old Cherokee districts, with the smallest constituencies in Cooweescoowee and Canadian Districts. The majority of the Keetoowah Indians later formed the political entity known as the Keetoowah Society, Inc., on 20 September 1905, because they knew that the Cherokee Nation was about to dissolve for political and practical purposes, leaving Cherokee Nation with no other general representative government unless the Keetoowahs carried on as a political body. The Keetoowah Indians believed they had to resort to their earlier governmental forms. Using a Federal Corporate Charter (20 September 1905) from the Territorial District Court in Tahlequah, as the Keetoowah Society, Inc., this faction functioned as a polity composed of a Chief and Council for the express purpose of carrying on the political and social functions of a Band. Because opposing factions like Redbird Smith's Nighthawks opposed any political organization they could not dominate, the Keetoowah Society, Inc., Inc., could not fully represent the interests of the Keetoowah Indians until they resolved such differences. Such a reconciliation was impossible until the Nighthawks resolved to be a religious and social organization with no political interests. Robert Owen, head of the Union Agency of the Five Civilized Tribes, one of Oklahoma's first U. S. senators and a Cherokee descendant, presented a memorial for the Keetoowah Society, Inc., at the Sequoyah Convention in 1905. He worked with attorney Frank Boudinot, the Keetoowahs' legal counsel after 1896 and Secretary after 1901, to prosecuted claims against the U. S. in behalf of the Keetoowahs. The Keetoowah Society, Inc., elected Frank Boudinot Chief of the Tribe in 1905, but with no legal effect on Cherokee Nation except within the Keetoowah Society, Inc. Like the Nighthawk Keetoowahs and other Keetoowah factions, the Keetoowah Society, Inc., granted membership to some who were less than fullblood but who were socially and politically fullblood. 1906-1934, THE GROWTH OF THE KEETOOWAH GOVERNMENTAL ORGANIZATION PRIOR TO IRA: The Five Tribes Act of 1906 provided for final disposition of the property and legal affairs of the Five Tribes, with special emphasis on the allotment process, and the establishment of municipalities in Indian Territory, clearing the way for statehood. The Act adopted language from various of the agreements with the Five Tribes, and drastically limited the sovereignty of Cherokee Nation: Section 11 [Tribal Taxes Abolished] . . . Provided, That all taxes accruing under tribal laws or regulations of the Secretary of the Interior shall be abolished from and after December thirty-first, nineteen hundred and five, but this provision shall not prevent the collection after that date nor after dissolution of the tribal government of all such taxes due up to and including December thirty- first, nineteen hundred and five, and all such taxes levied and collected after the thirty-first day of December, nineteen hundred and five, shall be refunded. Section 28 [Tribal Government Preserved to the Extent Not Terminated] . . . Provided, That the Tribal existence and present tribal governments of the Choctaw, Chickasaw, Cherokee, Creek and Seminole tribes or nations are continued in full force and effect for all purposes authorized by law, until otherwise provided by law. . . . but the tribal council or legislature in any of said tribes or nations shall not be in session for a longer period than thirty days in any one year; Provided, That no act, ordinance, or resolution (except resolutions of adjournment) of the tribal council or legislature of any of said tribes or nations shall be of any validity until approved by the President of the United States; Provided further, That no contract involving the payment of expenditure of any money or affecting any property belonging to any of said tribes or nations made by them or any of them or by any officer thereof, shall be of any validity until approved by the President of the United States. The Cherokee Nation still had a special trust relationship with the Federal government, and had not been terminated in the sense that tribes were during the 1950s. Congress expressly extended the existence of the Cherokee Nation, and intended that members could elect to continue its functions, or abandon tribal relations as they saw fit. The Cherokee Tribe retained on paper the basic powers necessary to carry on self-government, including the right to choose a form of government and select representatives, and to disburse assets. However, Cherokee Nation's members did not choose to carry out these functions, and abandoned virtually all the governmental activities the Act allowed them to preserve. The presidentially-appointed Principal Chief constituted the sole Cherokee government. By the 1930s, the Department found no extant functional Cherokee Nation government, but only a shell, consisting of the presidentially-appointed Principal Chief, whose main function was to sign papers disposing of Cherokee assets. Also, after all the legislation of the 1890s to 1907, congressional limitations on Cherokee Nation's sovereignty far outweighed the retained attributes. After 1907, the Nighthawk Keetoowah Society, in true sectarian spirit, named itself the "Original Keetoowah Society," based on the prophetic insights of several of the leaders. John Smith, son of Redbird Smith, and would-be prophet, continued to issue prophetic utterances in this vein throughout his life, long after the Nighthawks had adopted an official stance that they were not a political organization: This is the original Kee-Too-Wah Society. . . . Any other organization or body functioning or claiming representation under the name of the Kee-Too-Wah Society are fictitious and impostors.(26 May 1937) John Smith, the most influential Nighthawk leader among Redbird Smith's sons, had lost virtually all credibility among Keetoowahs by the 1930s due to his disastrous support of the Oneida con artist Chester Polk Cornelius. Cornelius nearly destroyed the Nighthawk organization with failed get-rich-quick development schemes that left many members landless and destitute. Some Nighthawk spokesmen and leaders now erroneously claim the UKB is a splinter of their religious cult, though the Nighthawks officially withdrew from all political activity after 1901, and barred its members from affiliating with any other groups or entities, including christian churches. As the number of tribal towns associated with the Nighthawks dwindled from 21 in about 1900 to 3 in 1937, the remnants of the "non-political" Nighthawk faction eventually collapsed into a variety of factions. These included two ceremonial grounds run by opposing factions of Redbird Smith's own family at Redbird's and at Stokes Smith's grounds, as well as the Goingsnake "Seven Clans" fire, the Medicine Springs Fire or Medicine Society, and the Four Mothers Nation. Other Cherokee political factions arose among the Keetoowahs, partly due to concerns about potential claims, partly to organize formally as a federally-recognized Tribe: the Cherokee Emigrant Indians, the Cherokee Immigrant Indians, and the Eastern and Western Emigrants. These factions of Oklahoma Keetoowah Cherokees by blood pulled together a coalition from the northern 14 counties of Oklahoma between 1920 and 1924, electing a Chief (Levi Gritts), and an Executive Council of Cherokees by Blood out of the body of the Keetoowah Society, Inc. During the 1930s, the majority of Keetoowah factions, now without any support of the dwindling Nighthawk separatists, supported the idea of reorganizing all the Keetoowah Cherokees in all the old clan districts as a united Band under the proposed Indian Reorganization Act. The Cherokees by Blood, representing all Cherokee descendants rather than Keetoowahs alone, failed in 1932 to obtain standing as a party to the Cherokee claims litigation. However, the Keetoowahs persisted as a political body apart from the Cherokees by blood. 1934-1937, THE IRA: The Land Division in the Department of the Interior concluded in 1934 that, unlike the other Five Tribes, Cherokee Nation was neither interested in reorganizing, nor capable of doing so. Unlike the other Five Tribes, Cherokee Nation had stopped electing officers and holding meetings. Most members simply had abandoned tribal relations after 1906, and by the Great Depression, were leaving Oklahoma by the thousands. Only the Keetoowah Indians were willing and probably able to reorganize in Oklahoma with great success, if the factions would only pull together. CNO could only reorganize under OIWA and IRA today through an election relying almost entirely on absentee ballots. At the Muskogee hearing concerning the draft Indian Reorganization Act on 22 March 1934, Keetoowahs shouted down their opponents and presented John Collier and his staff with a formal petition and letter supporting the IRA, and orchestrated a motion from the assembly roundly endorsing the legislation. Shortly thereafter, the Commissioner received a telegram, opposing reorganization. Though supposedly wired from the Keetoowah Council, upon investigating, the Commissioner learned the message was a forgery. Collier publicly praised the Keetoowahs for their enthusiasm and understanding for reorganization in a variety of writings and press releases. Interior Associate Solicitor Felix Cohen monitored the Keetoowahs' efforts to reorganize. Keetoowah leaders offered plans for reorganization, along with lists of members who supported IRA. Neither the Cherokee Principal Chiefs nor any general representative body of Cherokee Nation itself showed any support, while various non-Keetoowah Cherokees wrote to the Commissioner denouncing the plan. A. M. Landman, Five Civilized Tribes Superintendent, predicted that the mixed-bloods would control any pan-tribal Cherokee organization. Landman believed that a fullblood organization was best suited to represent the fullbloods. However, each faction demanded recognition as the exclusive representative government of the Tribe. 1937-1939, OIWA AND EARLY ATTEMPTS TO A REORGANIZE KEETOOWAH GOVERNMENT WITHIN CHEROKEE NATION'S FORMER BOUNDARIES: Oklahoma Senator Elmer Thomas, who believed the IRA should be restricted to reservation Indians, co-authored the Oklahoma Indian Welfare Act to allow Indians living on allotted lands in the state to avail themselves of the benefits of IRA. Though the participation of Oklahoma Indians in the IRA was not possible until the Thomas-Rogers Act of 1936 enabled reorganization under IRA through the OIWA, the Keetoowahs began planning to organize under the legislation. Just as A. M. Landman had predicted, the Keetoowah Society, Inc., at the urging of Levi Gritts, sought permission to represent the Keetoowah Indians, while certain other factions still demanded recognition as the exclusive representative government of their own small following, if not of the Tribe. BIA anthropologist Dr. Charles Wisdom conducted research on the Keetoowah Indians starting 5 May 1937 with the cooperation of Organization Field Agent Ben Dwight. Wisdom did not realize the Keetoowahs had a Federal Charter predating to the dissolution of Cherokee Nation, showing the Keetoowahs' intent to maintain a governing entity within Cherokee Nation despite the effect of other Federal legislation. While the Nighthawk Keetoowahs were willing to submit to an interview, the Nighthawk leaders later utterly rejected the idea of participating in organization, primarily because they were not to be the focus of the project. Levi Gritts's effort failed when Associate Solicitor Frederick Kirgis issued his Keetoowah- Organization as a Band Opinion (29 July 1937), based on Charles Wisdom's brief ethnographic study, concluding that the Society, or any of its factions, standing alone, was only a society of the Keetoowah Indians, and never had been a governing polity within the Cherokee Nation. A Land Division decision in October 1937 stated that the Cherokee Nation government under the 6 September 1839 Constitution was ineligible to reorganize to undertake the functions of the 1906 government. Congress had dissolved most aspects of the inherent sovereignty of the Cherokee Nation government as set out in the 6 September 1839 Constitution.[(MEMO TO INDIAN ORGANIZATION, 25 October 1937, from Director of Lands (WDW) to Daiker, Indian Organization (163618); see also Solicitor's Opinion, 1 October 1941, 1 Op. Sol. on Indian Affairs 1076 (U. S. D. I. 1979)] The decision binds CNO, despite the Harjo v. Kleppe court's finding that the Five Tribes still existed in 1972, and that the citizens of those tribes had the right to organize governments under OIWA and IRA. Thus, while the Cherokee Nation was not terminated, any new organization of the Cherokee Tribe would have to be an entirely new entity. Field investigators reaffirmed that Cherokee citizens forming the general class of Dawes enrollees, with the exception of the Keetoowahs, had abandoned tribal relations and had no interest in reorganization. 1939-1946, THE UNION OF KEETOOWAH FACTIONS TO FORM THE UKB: Contrary to post-1979 accounts by CNO, the UKB Base Roll was the BIA-approved 1949 UKB Base Roll, not the 1907 Cherokee Dawes Commission Roll. Neither Principal Chief Jesse B. Milam nor W. W. Keeler had any role except as bystanders in the UKB reorganization. The UKB was never intended to be a mere loan association. The UKB was federally-chartered under Section 3 (not Section 4) of the OIWA. The UKB never identified itself with the Nighthawk cult, because most UKB members belonged to Protestant denominations. In June 1939, Organization Field Agent Ben Dwight informed Regional Coordinator of Organization for the Five Civilized Tribes Agency, Muskogee, A. C. Monahan, that Kirgis had been unaware of the Keetoowah Society, Inc.'s Federal Corporate Charter (20 September 1905). In obtaining that Charter, the Keetoowah Indians had established recognition as a polity of Indians. That recognition should have made them eligible to reorganize under OIWA and IRA. Realizing the legal effect of that document, A. C. Monahan assigned Ben Dwight and A. A. Exendine to help the Band to organize a coalition government between 1939 and 1946 including the Society, Inc. and other factions as well. The United Keetoowah Cherokee Band of Indians (UKB) formed a Constitution and By-laws in 1939, and held popular elections between 1939 and 1946, seating a Chief, Reverend John Hitcher (1939-1946), and a Council. The UKB undertook land acquisition efforts for the purpose of establishing a Federal trust land base in Oklahoma in 1942, but the Department would not cooperate without congressional approval. Some Five Civilized Tribes Agency employees hoped to use the Band as a vehicle for restoring the Old Cherokee Nation, or at least for reorganizing all the Cherokee Dawes Commission enrollees and their descendants under OIWA and IRA. However, the 25 October 1937 decision of the Director of Lands, Land Division, Department of the Interior, prevented that result. The UKB decided by 1942 to remain a "Keetoowah" Cherokee polity including only Cherokee descendants who met the UKB membership requirements. The Department determined that an organization of the Keetoowahs, reuniting the various Keetoowah factions and other Cherokees of one-half blood or more who wanted to participate, did not conflict with the residual government of the Cherokee Nation. The latter was to retain its 1906 status under an appointed Principal Chief. D'Arcy McNickle's determination of 24 April 1944 found the UKB was a historical tribe (see full text below). Rather than merely ask the Solicitor to rewrite the opinion, Acting Interior Secretary Abe Fortas asked Congress to pass the 10 August 1946 Act acknowledging the UKB's historical status and eligibility to reorganize under OIWA and IRA. The legislative history and intent contemplated recognition of a united body of Keetoowah Indians of 1/4 degree Indian blood or more, with the possibility of enrolling persons of lesser degree in the future. Keetoowah Indians of all factions and communities worked with the Organization Field Agents through Five Tribes Agency after 1946 to reunite under a common secular leadership, although every UKB Chief from 1939 to 1979 was a protestant clergyman. UKB interest in Cherokee-related issues was entirely restricted to interests of the UKB constituency, composed primarily of restricted Indians, non-Dawes enrollees, and other Keetoowahs who remained loyal to the Keetoowah political ideals. 1946-1950, THE KEETOOWAH INDIANS ACT AND THE UKB REORGANIZATION: Reverend Jim Pickup (1946-1954, 1956-1957, 1960-1967) succeeded Reverend John Hitcher (1939-1946) at the latter's death in 1946, continuing as Provisional Chief until reorganization was complete. Pickup continued as Chief, alternating with Jeff Tindle, until 1967. Due to the Kirgis Keetoowah - Organization as a Band Opinion (29 July 1937), the UKB reorganization process could not begin until Congress agreed to offer the UKB the opportunity to reorganize under OIWA and IRA. The Organization Field Agents, congressional staff, and Acting Interior Secretary Abe Fortas, Congressman Stigler and Senator Thomas supported the proposed UKB reorganization, based on the results of additional research and the success of organizing efforts. Congress passed the Keetoowah Act on 10 August 1946, as part of a package measure including a gift of land to the Cheyenne-Arapaho Tribe in Oklahoma. Although in the 1930s the plan was to organize half-bloods only, the 1946 Act did not contemplate the organization of an adult Indian community under Section 479 of the IRA, but of a sovereign tribe in the full sense under Section 476 of the IRA. Therefore, the 1949 UKB Base Roll was open to quarter-bloods, anticipating the future adoption of other Cherokee descendants of lesser blood. The reorganization process took another four years. On 1 May 1949, anticipating the roll the UKB would have in managing their share of Cherokee Nation property, the BIA named Chief Jim Pickup as Trustee for Cherokee Nation assets. On 9 May 1950, Secretary Warne signed the approved UKB Charter, and issued a statement that the UKB treaty rights could be found in the treaties of the Cherokee Nation. The UKB corporate Charter, Constitution and By-laws were adopted 3 October 1950 by the majority of qualified voters. Thereafter, the UKB, incorporating all the factions of the Keetoowah Indians of the Cherokee Tribe throughout the nine districts of the old Cherokee Reservation, continued to repose its secular governmental authority continuously in democratically-elected Chiefs (also informally called, in the 1940s, "Presidents"), Executive Officers, and a Tribal Council, with other subordinate officers and officials as needed. The 1939 Roll, reaffirmed in 1949, became the foundation of the Base Roll, subject to amendment by 3 October 1955, though the UKB updated it in 1985 with secretarial approval. During the periods of open enrollment, consistent with the 1950 enrollment laws, members of 1/4 or more Cherokee ancestry, using the Dawes Roll or any other acceptable proof of Cherokee ancestry by blood, were adopted into the Band. Enrollment remained open, though enrollment ordinances changed several times. 1950-1964, THE UKB DURING TERMINATION: Despite undocumented and spurious claims to the contrary, archival sources demonstrate that the Band continued to survive and function as a tribal entity since reorganization, although not without heated election controversies and partisan feuds, such as those between the Jeff Tindle (1954-1956, 1957-1960) and Jim Pickup (1956- 1957, 1960-1967). With the aid of Earl Boyd Pierce, Esq., the UKB resumed efforts to borrow money in order to acquire a tribal trust land base, through the OIWA/IRA revolving credit. In refusing to extend loans to the UKB, the BIA relied on the point that the UKB was not organized under Section 4 of the OIWA as a loan association, but was a recognized tribe organized under Section 3. When the policy was changed making the Section 3 organizations eligible to apply, another general policy of BIA Superintendent W. O. Roberts and the Eisenhower Administration prevented loans for such trust land acquisition. When UKB Chief Jeff Tindle attempt to have Principal Chief W. W. Keeler replaced, Muskogee Area Director Fickinger seized on the occurrence of a UKB election dispute to declare the UKB without a government. When the Band appealed, the BIA Commissioner Glenn Emmons admonished Fickinger on his refusal to recognize UKB's Council. Between 3 October 1950 and 3 October 1960, while the Secretary retained approval authority over the UKB, but the Department determined that such authority lapsed on 3 October 1960 (see Letter, 15 October 1961, from Assistant Chief Tribal Operations Officer Pennington to Muskogee Area Director Virgil N. Harrington, regarding Harrington's 7 August 1961 inquiry as to the effect of Sections 5, 6 of the UKB's Charter on secretarial approval authority after 3 October 1960). Principal Chief W. W. Keeler never obtained supervisorial authority over the UKB, except covertly, by arranging with Area Director Harrington and the UKB's attorney to receive all information regarding their private undertakings so that he could veto them if they did not suit him. After Chief Pickup resumed office, replacing Chief Jeff Tindle, the BIA began to work with the UKB to make the Band the vehicle for delivering services to its own members and to other service-eligible Cherokees. In 1963, the BIA and Cherokee Nation realized that because of restrictions in the Band's Charter that could not be lifted without a secretarial election, the UKB was unable to engage in land transactions that involved long-term leases or sale of acquired tribal lands. The UKB continued to seek trust land acquisition for tribal housing and its own governmental offices and business, with no cooperation from the BIA. Members of the UKB Tribal Council continued to administer enrollment and to verificy qualifications of prospective members, approving enrollment updates through formal Council action. A 4 June 1963 enrollment ordinances required new members to prove 1/2 or more degree of Cherokee Indian blood, but the 23 November 1964 enrollment ordinance restored eligibility to quarter bloods. All enrollment ordinances continued to rely upon the 1949 UKB roll. 1964-1976, THE UKB DURING RECONSTRUCTION OF CHEROKEE NATION: Cherokee Nation or Tribe and the UKB embarked on joint enterprises in the early 1960s. The UKB Council and Chief Pickup tried to help all Cherokees, regardless of UKB affiliation, by acting as the Cherokees' sponsoring federally-acknowledged tribal organization for the purpose of bringing in funds and programs to Oklahoma. Chief Jim Pickup, as Trustee for the trust assets of Cherokee Nation (4 May 1949 - 17 May 1967), wanted the UKB Council's joint and concurrent control over Cherokee trust assets, programs and services within the boundaries of the old Cherokee Nation to continue, for the benefit of the UKB's own members. UKB Chief Jim Pickup and UKB Chief Bill Glory (1967-1979) attempted to work cooperatively with Cherokee Nation, even though UKB members bitterly criticized both of them for being too accomodating and giving away the rights of the UKB. Some leading members of the UKB Council even resigned in protest. Relations deteriorated irreparably between Chief Glory and Principal Chief W. W. Keeler by 1974. Keeler evicted Glory from the small UKB tribal office housed in the CNO tribal complex at Tahlequah after Glory retired from the Cherokee Nation Housing Authority. Cherokee Nation attempted thereafter to close all doors to UKB participation in Cherokee property and activities. The Act of Oct. 22, 1970, 91st Cong., 2nd Sess., P. L. 91-495, 84 Stat. 1091 (1970), the Bellmon Bill, "Authoriz[ed] Each of the Five Civilized Tribes of Oklahoma to Select Their Principal Officer . . . ." However, Commissioner Louis Bruce, in American Indian Tribes and their Federal Relationship, Plus a Partial Listing of other United States Indian Groups (Wash., D. C.: U.S. Dept. of Interior, BIA, March, 1972) declared that the UKB is a fully recognized Class 1 OIWA/IRA tribal entity, while Cherokee Nation remained an unorganized Class 3 service population. Federal court challenges later determined that the presidentially - or secretarially - appointed Principal Chiefs of Cherokee Nation since 1906 were bona fide heads of state, but those decisions had no legal effect on the status of the UKB. 1976-1990, THE UKB DURING CHEROKEE NATION OF OKLAHOMA'S SELF- DETERMINATION: CNO opposed the UKB's continuing efforts to establish a land base, tribal office complex, businesses, and to maintain a separate roll. CNO began exploring ways to terminate the Band, including through administrative and congressional action. The course of choice was to request nullification of the UKB Corporate Charter as provided in Section 8 of that Charter. CNO adopted a non-OIWA/IRA government under a 5 July 1976 Constitution that Commissioner Morris Thompson and Ross O. Swimmer co-approved 2 October 1975. CNO claimed this document to be the legal equivalent of an OIWA Charter, Constitution and By-laws. CNO claimed that the UKB and CNO shared a common base roll and service population, and that CNO should control all funding and trust assets within the former boundaries of Cherokee Nation. Litigation addressed question whether the Cherokee government was terminated in 1906. The BIA supported CNO's claim that the OIWA and IRA abolished the effect of the 1906 Act in that the Tribe was eligible for the benefits of OIWA and IRA; however, no one has explained how any Tribe can avail itself of the full benefits of OIWA and IRA without reorganizing accordingly. Congress, having limited the inherent sovereignty of Cherokee Nation, began to restore it through piecemeal legislation in the 1980s. The BIA also gave CNO special dispensations that went around the intent of OIWA and IRA. UKB's organization under OIWA / IRA became a liability, when Swimmer slurred the OIWA, IRA and 1946 Act, claiming the UKB was a "created" tribe lacking any sovereignty. UKB political and governmental activities and economic development efforts were muddled during the early to mid-1970s, dissolving into factional disputes between Chief Bill Glory and the Tribal Council. The feud led to the development of a Shadow or Underground government under the leadership of Tom Hicks, Henry Doublehead and Willie Jumper. Eventually, Jim Gordon (1979-1983) was elected as the new Chief to succeed Glory after Tom Hicks withdrew. UKB's Council, gridlocked during the mid-seventies, returned to an even keel when the Council sought aid from Muskogee Agency to restore order and clear the wreckage left after Chief Glory's chaotic administration. The years of Chief Jim Gordon's administration (1979-1983) were fraught with controversy and a taste of the unrelenting harassment of CNO to come. Under Chief Gordon, the Enrollment Committee expanded enrollment activities, under a series of new ordinances. For a time, eligibility expanded, though few outside the original eligibility classes availed themselves of the opportunity. New additions to the Roll occurred through Council resolutions in 1980, and in another series of additions, concluding in October 1982. During these years, the UKB attempted to participate in various programs and development strategies with mixed success, due to lack of resources, lack of cooperation from the BIA and the State, direct interference from CNO, and the UKB's own internal political confusion and distress. In the Federal Register, Vol. 44, No. 26, Tuesday February 6, 1979, pp. 7235-7236, the Secretary of the Interior lists the UKB as a federally- recognized, service-eligible entity. The Department has since characterized this and similar publications as binding determinations of the Department regarding the recognition of tribes, both in Federal litigation and in congressional hearings. Principal Chief of Cherokee Nation Ross O. Swimmer denied UKB's historical existence for the first time of record to Oklahoma Senator Henry Bellmon, in a Letter, 27 April 1979. Swimmer claimed the UKB was "created" by the accidental inclusion of their name in the 6 February 1979 Federal Register notice; see also Letter, 30 April 1979, Principal Chief of Cherokee Nation Ross O. Swimmer to Oklahoma Senator David Boren, denying UKB's historical existence. The claims that the UKB is a sovereign inferior to CNO, that the UKB has no rights as a Federal-Indian tribe, regardless of source or basis, do not antedate 6 February 1979, and probably are no earlier than 27 April 1979. In May 1979, Assistant Deputy Commissioner Martin Seneca issued a decision requiring the UKB and CNO to issue concurring resolutions to obtain P. L. 93-638 "tribal organization" funding. CNO Principal Chief Ross O. Swimmer lobbied successfully with Assistant Secretary Forrest Gerard to overturn the Seneca determination. However, in characterizing the organization of federally-acknowledged tribes listed in the 6 February 1979 Federal Register notice, on 20 November 1979, Ms. Patricia Simmons, Tribal Relations Specialist, submitted to the Chief, Branch of Tribal Relations, a detailed report titled, "Organizational Status of Federally Recognized Indian Entities." Simmons surveyed a category (p. 2) of "Officially Approved Organizations Pursuant to Statutory Authority (Indian Reorganization Act: Oklahoma Indian Welfare Act; and Alaska Native Act), finding (p. 3), UKB had a Council organized under a Federal Corporate Charter. In the "Other" category of "Officially Approved Organizations Outside of Specific Statutory Authority," (p.7), Cherokee Nation (with a Council) was listed. On 16 January 1980, Gerard eliminated requirements that CNO obtain concurring resolutions from the UKB to apply for any Federal program funds serving Cherokees. CNO continued to claim that the UKB and CNO have a common population, though very few CNO members ever were eligible for membership in the UKB. The Band obtained a P. L. 93-638 Grant to amend the 1949 Base Roll and produce a current (1986) Roll. In the first month of the project, the BIA reaffirmed that the UKB Base Roll was distinct from the 1907 Cherokee Dawes Commission Roll, and therefore was a Base Roll distinct from CNO's. The Band transmitted the updated 1949 Roll, the newly approved and duly adopted 1986 Membership Roll, and the Final Report of P. L. 93-638 Grant G08G142002 to the BIA's Muskogee office as a deliverable on 16 March 1986. The Band submitted these records to Federal District Court with a cover note from the BIA Muskogee Area Office, in the course in litigation in 1987 in Cordelia Tyner, a/k/a/ Cordelia Tyner Washington, and the United Keetoowah Band of Cherokee Indians v. State of Oklahoma, ex re., David Moss, District Attorney and David Moss, individually; M. Denise Graham, individually, No. 87-2797, U. S. D. C., N. D., Oklahoma., when the State subpoenaed a copy of the Band's tribally-certified roll. In 1988, the Department found that the 1976 Cherokee Nation was, as constituted, "the full successor to the Cherokee Nation of the first decade of this century."(Letter, 4 February 1988, Hazel E. Elbert, Acting Assistant Secretary of Interior for Indian Affairs, to James G. Wilcoxen, Esq., Wilcoxen and Cate, Muskogee, Oklahoma) However, unexplained questions regarding the Tribe's inherent sovereignty, precisely because it is the full successor to the Cherokee Nation as dissolved in part and preserved in part in 1906. The Department did not find that CNO had any authority over the UKB, a tribe organized separately under OIWA and IRA. Elbert did find that the 25 October 1937 Land Division Opinion remained in effect. UKB Membership Ordinance 90 UKB 9-16 16 September 1990 provides that any descendant of 1/4 Cherokee Indian blood of any enrollee on the 1949 UKB Base Roll, or on any other historical Cherokee Roll, shall be eligible for enrollment in the UKB. Final determinations of Cherokee Indian blood quantum rest with the UKB Tribal Council. Under that ordinance, UKB members who held affiliation of any kind with any other federally-acknowledged tribe were required to relinquish that membership. The UKB continues to require relinquishment for new applicants, but is setting up the process for an IRA election to change enrollment requirements to require relinquishment and to ban dual affiliation. Finally, in 1990, after a systematic review of the United Keetoowah Band's enrollment and membership files (and a comparison of those data with the Cherokee Nation of Oklahoma's data), the BIA Muskogee Area Office confirmed, that more than 3,000 members of the United Keetoowah Band, including its Base Enrollees, never were registered with Cherokee Nation of Oklahoma, and therefore never had any form of dual affiliation with that entity. Some 4,700 UKB members either never voluntarily registered with Cherokee Nation of Oklahoma, or once were registered (voluntarily or involuntarily), but subsequently voluntarily relinquished their CNO registration. On 24 July 1992, Rosella C. Garbow, Muskogee Area Tribal Operations Officer, declared: This is to certify that records created in 1985 show that the United Keetoowah Band of Cherokee Indians in Oklahoma has approximately 4,700 enrolled members residing within their service area. Over 250 more UKB members have relinquished their affiliation with any other federally-recognized tribe since that date. The 1986 United Keetoowah Band Roll, completed during the P. L. 93-638 grant, was known to be an official Tribal Roll for all purposes, duly adopted by the Tribal Council, and authenticated by the BIA, within the meaning of Federal Indian Law. It is up- to-date, and there are regular monthly additions through adoption, and clarifications of exclusive affiliation through relinquishment from Cherokee Nation of Oklahoma. Regardless of Dawes descendency, it is the policy of the United Keetoowah Band of Cherokee Indians in Oklahoma that all lineal descendants of the 1949 Base Roll and current roll are automatically eligible for membership in the Band. The UKB hoped that the enrollment update and other status clarification efforts would result in separation of their population from CNO's, and would lead to the development of a UKB land base and separate programs. However, a separation of the two populations required the cooperation of CNO, and that was virtually impossible for the UKB to obtain. The UKB sought to finance litigation to obtain a clarification of their political and economic rights, but CNO intervened with all agencies, foundations, corporations, local governments and Congress to prevent any successful business ventures. CONCLUSION: 1990-1993, THE CHEROKEE NATION OF OKLAHOMA'S CAMPAIGN TO TERMINATE THE UKB: In 1990, in a desperate effort to prevent the Secretary from extending to the UKB the full rights of a properly organize OIWA and IRA tribal government, Ross O. Swimmer wrote a letter to Assistant Secretary Brown. This letter concluded that the UKB should not be recognized at all, because the UKB Base Roll was the not BIA-approved 1949 UKB Base Roll, not the 1907 Cherokee Dawes Commission Roll, because Principal Chief W. W. Keeler had the UKB reorganized to suit his own purposes, because the UKB was only intended to be a loan association, and because the UKB, though federally- chartered under Section 3 of the OIWA, was always trying to ride the coattails of the Nighthawk Keetoowahs in order to establish a tribal identity. Swimmer's claims became the core of the case against the UKB thereafter in litigation and in hearings. The CNO had terminated a tribe by creating a new mythology. The premise upon which Assistant Secretary Forrest Gerard relied in penning the 16 January 1980 Letter barring separate funding for the United Keetoowah Band was the same one upon which Congress relied in declaring the United Keetoowah Band ineligible for separate funding and land acquisition in Oklahoma (at least for the purposes of the 101st Congress) within the former boundaries of Cherokee Nation (in Amendment 86 to H. R. 101-116, the FY 1992 Interior Budget Appropriations Bill). That defective premise was that Cherokee Nation of Oklahoma and the United Keetoowah Band share the same Base Roll. AN EXECUTIVE SUMMARY OF THE UKB'S STATUS WITH REVIEW UNDER THE CRITERIA OF 25 C. F. R. 83 "The Keetoowahs themselves have never accepted the view that they are not "the people' and that they do not speak for the real interests of the ancient Cherokee world. They continue to this day to speak and act in all patience as if the decrees of the courts and the acts of the Congress had never been. But they are still puzzled at the failure of the United States to understand the simple thing they have always said, namely that Keetoowah is Cherokee and should never have been considered anything else." -- from Position Paper on the UKB, 24 April 1944, D'Arcy McNickle, THE STATUS OF THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA The purpose of the following narrative is to lay to rest certain popular misconceptions about the political identity of the Keetoowah Indians who compose a recognized Indian tribe. The most damaging of these misconceptions arose during the concerted, well-financed campaign by the Cherokee Nation of Oklahoma and the Department of the Interior to falsify the record of the UKB's existence and organization to accomplish the Band's termination. That campaign started on or about 27 April 1979. The UKB hopes that Congress, Indian nations and voters will learn from this account how the involuntary termination of tribal existence still is possible. * * * After 1968, Congress took steps to halt or reverse the unilateral administrative and legislative termination of tribes. P.L. 100-297, Title 25 U. S. C. Section 2502 (April 28, 1988), formally rescinded P. L. 83-108 as a statement of the "sense of Congress," at least for the purposes of the 100th Congress. Congress declared that there shall be no unilateral termination of any federally-recognized tribe. See legislative history at 1988 U. S. Code Congressional and Administrative News, p. 101. Termination still happens, through third-party challenges to the tribal status of tribes that are recognized. Aggressive lobbying, litigation, and defamation are effective tools for competing governments and business interests who find any particular tribe's inherent powers and rightful property claims to be inconvenient. The UKB example provides an important case study of the continuing termination process. This narrative begins at what could be the end. The effect of an obscure amendment to the FY 1992 Interior budget was to declare the Band ineligible for separate services or Federal trust land acquisition, and therefore effectively terminated as a sovereign. The legislative history of Amendment 86 is illustrative of the UKB's interactions with the U. S. Congress, the BIA, Cherokee Nation of Oklahoma, and the State of Oklahoma since 1979. Knowing well that the purpose of a $100,000 line item in the FY 92 Interior budget was to allow the UKB to maintain a current distinct Tribal Roll, Cherokee Nation of Oklahoma intervened to prevent the funding allocation. Congressman Mike Synar's testimony against the UKB during the hearings on FY 1992 Interior appropriations quoted from what he said was a BIA assessment of the UKB's performance under its 1984 P. L. 93-638 grant to update the UKB Roll. At the hearing, Chairman Les Aucoin clearly viewed this quote as the single most important charge against the UKB. At the appropriations hearing, BIA witnesses verified that the statement was an authentic quote from a 1980 BIA report. No one at the hearing, no member of Congress, no staff member ever read the alleged quote carefully enough to notice the date of the alleged BIA "determination." No one at the hearing read from or cited the 1984 grant approval letter from the BIA to the UKB informing the Band of the award and its terms. No one cited the UKB's 1986 Final Report or read from the Band's cover letter. No one invited the UKB to respond, or listened when the UKB learned about the hearing and attempted to respond to the accusations of Congressman Synar and CNO. No member of Congress ever has asked whether it was physically impossible for there to be a 1980 BIA negative assessment of the Band's performance on a project which did not exist until 1984, and which the Band completed in 1986. The UKB Tribal Council's Final Report to the BIA on their 1984 P. L. 93-638 grant accompanied an approved and updated roll. That roll was verified by the BIA Muskogee Area Office for use as evidence in Cordelia Tyner, a/k/a/ Cordelia Tyner Washington, and the United Keetoowah Band of Cherokee Indians v. State of Oklahoma, ex re., David Moss, District Attorney and David Moss, individually; M. Denise Graham, individually, No. 87-2797, U. S. D. C., N. D., Oklahoma (1987), when the State of Oklahoma demanded that the UKB produce a current approved Tribal Roll. Contrary to post-1979 accounts by CNO, the UKB Base Roll was and still is the BIA-approved 1949 UKB Base Roll, not the 1907 Cherokee Dawes Commission Roll. A comparison of the grant letter and the UKB's Final Report proves that Congressman Synar's 1991 allegations against the UKB were false. It is impossible to write a valid program evaluation four years before a project starts and six years before it ends. If the BIA was prescient enough in 1980 to forsee the UKB would fail to perform on its 1984 grant contract by 1986 and issue a report in 1980 making that finding, why did the Assistant Secretary grant the award in the first place? If the new Congress is incapable of rescinding Amendment 86, no Indian sovereign is safe. * * * Another charge against the UKB dating to 1979 is that it is a splinter group of the Nighthawk Keetoowah religious organization, or alternatively, that it is a bogus organization wrongfully claiming a political identity and affiliation with the Nighthawk Keetoowahs. The UKB never identified itself with the Nighthawk cult. Most original UKB members belonged to Protestant denominations, and most of the Chiefs have been fundamentalist preachers or church leaders; that is the plain truth. Chadwick Smith, a Cherokee affiliated with Cherokee Nation and enrolled with the UKB, has been an employee of Cherokee Nation since the 1970s. While he serves as legal counsel for CNO and as a judge in CNO's magistrate court system, he also represents the Nighthawk Keetoowahs regarding their false claim that the UKB is a splinter group of the "Nighthawk" Keetoowah Society, created at some unknown date between 1905 and 27 April 1979 (the date when Ross O. Swimmer's claims against UKB's status emerged). Chadwick Smith leads a group of "Reformed Keetoowahs" dedicated to neutralizing UKB political activity, by termination if possible. Ironically, Chadwick Smith is a grandson of Rachel Quinton, a faithful UKB Council representive for the Canadian District, as well as Secretary and Clerk during the 1950s, 1960s and 1970s, who never saw the UKB as a creature of CNO. Throughout most of her later years, Secretary Rachel Quinton unsuccessfully promoted reconciliation between Stokes Smith, the Chief of the Nighthawk contingent in her day, and the UKB Council, hoping that Stokes Smith's would encourage his followers to join the UKB. Mr. Smith's personal crusade against the UKB repudiates his membership in the UKB, and dishonors the memory of his own grandmother. Federal records and official accounts attest that the Nighthawk Keetoowah Society broke away from the old Keetoowah Society about 1905 as a result of a disagreement regarding the political future of the community. The history of the "Nighthawks" as a secretive religious cult in the strict anthropological sense is well-established in scholarly writings. Today, the two main opposing factions of Keetoowah Nighthawks at Stokes Smiths Grounds and at Redbird Smith's Grounds still claim (separately, and in opposition to each other and the rest of the world) to be the arch-conservative bastion of Cherokee tradition. The Nighthawks generally have barred members from affiliation in any other political, religious or social organizations. The Nighthawks' "non- political" religious organizations shunned most christian influences as a doctrinal matter, though Redbird Smith himself venerated Christ at the end of his life. Therefore, it is most interesting to find that in 1991, the Nighthawk Keetoowahs at Stokes Smith's Grounds reversed a policy of over 80 years' standing to attack the political status of the UKB, adopting a new agenda that suited Chad Smith's professional aspirations quite well. Chad Smith, his father and certain cronies have used their dual affiliation with CNO and the UKB to mount a widely-advertised campaign to terminate the UKB from within. The Keetoowah Society, Inc., incorporated on 20 September 1905, and worked to keep the Keetoowah factions united. The Corporation led the struggle for the right of the UKB to reorganize, but its long-time leaders lost credibility and following to the UKB after 1939. By 1950, most members of the various Keetoowah factions had joined the UKB, even though the leaders of these factions never officially resolved their philosophical differences. While the Nighthawk Keetoowahs recorded under 900 current members (and the membership at the two remaining, opposing grounds has continued gradually to decline), the official UKB enrollment was around 1,500 in 1939, and grew to over 3,000 by the time of the IRA election in 1950. The UKB has a resident Oklahoma service population of 4,700, of whom about 4,000 hold exclusive UKB membership. The weak basis for the "Nighthawk" legend appears below in a detailed chronology and analysis of events leading to the acknowledgment of the UKB in 1946 as a federally-recognized tribe entirely distinct from the Nighthawk organization or from Cherokee Nation. * * * On 27 April 1979, Ross O. Swimmer claimed that the UKB was created as a Section 4 loan association under OIWA, only to enable individual Cherokees to obtain personal loans. UKB was never intended to be a mere OIWA loan association. The UKB was federally-chartered under Section 3 (not Section 4) of the OIWA, and never received any OIWA loans, because the BIA refused to allow them to participate in the program, even after the rule changes made them eligible, as a Section 3 chartered Tribe. Ross O. Swimmer later claimed (8 May 1990) that Principal Chief W. W. Keeler personally arranged the acknowledgent and reorganization of the UKB after 1950 in order to assure that Cherokee interests would be represented in Federal claims actions. While Swimmer's 8 May 1990 claim is false in stating that Keeler had any significant role in the 1946 Act or the UKB reorganization, it supports the theory that the UKB is entitled to standing as a party in any claims actions regarding the trust assets of the old Cherokee Nation. As the records demonstrate, neither Principal Chief W. W. Keeler, nor his immediate predecessor Jesse B. Milam, had any role except as bemused bystanders in UKB's reorganization. We have found no evidence that Keeler knew what a Keetoowah was until he was appointed to Cherokee Nation Executive Committee on 30 July 1948, months before he succeeded Milam. Swimmer's fallback position was that the UKB never properly reorganized under OIWA and IRA, notwithstanding the 1946 congressional recognition of the Band's eligibility to reorganize, due to a 1937 Solicitor's Opinion by Frederic L. Kirgis. In Keetoowah -- Organization as a Band Kirgis determined the Keetoowah Society, Inc., was ineligible under OIWA and IRA to reorganize as an Indian tribe. Swimmer was silent regarding the written findings of the Five Civilized Tribes Agency Organization Field Agents (Ben Dwight and A. A. Exendine) and of their Regional Coordinator, A. C. Monahan (between June 1939 and 1946). Swimmer seemed conveniently ignorant of the documented BIA organization field work with the UKB after 1937, and the legislative history of the 1946 Keetoowah Indians Act. In debunking Swimmer's follies, this narrative reviews the entire documented history of the UKB's reorganization under the OIWA and the IRA. The narrative describes the Band's near eradictation between 1979 and 1992 due to administrative termination and legislative logrolling. The narrative concludes with a brief discussion of measures the UKB is undertaking to survive. * * * This story of the near-termination of the UKB begins with an account of the Band's formal congressional recognition. The 1937 Keetoowah Society, Inc., Opinion lost all significance in the congressional acknowledgment of the UKB. Congress knew all about the Opinion, and agreed with the policy basis, but disagreed with the fact- finding and conclusions. The 1937 Kirgis Opinion relied on the understanding that the various Keetoowah factions that had broken away since 1900 had never formed a coalition government. He ignored the significant point that, though the Keetoowah Society, Inc., had lost much of its right to claim dominion over all Keetoowah Indians due to factionalism, the Keetoowah Society had obtained a Federal Charter from a territorial court in Tahlequah on 20 September 1905, recognizing it as a polity of Indians. The Keetoowah Indians already had been federally- acknowledged as a political entity, a tribe. CNO claims that the 1946 Keetoowah Act was somehow an error, but the legislative history behind the 1946 Keetoowah Act shows the UKB's recognition was no fluke. In endorsing the bill, Acting Secretary of the Interior Abe Fortas relied on ten years of BIA organization work, finding that it was possible for the majority of Keetoowah Cherokees to unite to form a coalition government by consensus, even if it meant abandoning their own factions, including the Keetoowah Society, Inc., itself. U. S. Congress recognized the United Keetoowah Band of Cherokee Indians in Oklahoma (UKB) as a Tribe of Indians residing in Oklahoma under the Act of August 10, 1946 (60 Stat. 976). The Band subsequently incorporated under Section 3 of the Oklahoma Indian Welfare Act of June 26, 1936 (46 Stat. 1967), the OIWA. The Secretary of the Department of the Interior approved the Band's election (October 3, 1950) to ratify the amendments to the UKB Tribal Constitution and Bylaws, and to adopt a Corporate Charter under the OIWA. The UKB remains an autonomous, distinct, federally-recognized tribal entity. The UKB has reserved to itself all the rights and privileges secured to organized tribes under Section 3 of the Indian Reorganization Act. CNO also claimed in statements to the BIA (1990 - 1991) that, regardless of the 1946 Act, the reorganization of the UKB was fundamentally defective or never completed, and that therefore the Band should never be recognized. BIA representatives adopted this line in discussions with Keetoowah representatives visiting in Washington, D. C., in 1991, claiming that they simply could not locate signed copies of the UKB Charter, Constitution or By-laws, or proof that the 3 October 1950 Federal election ever had happened. The UKB's findings in Federal archival holdings in 1990 and 1991 proved not only that these documents existed, but that BIA staff had made no reasonable effort to look for them, or simply were lying. On 27 April 1979, Ross O. Swimmer also claimed that the UKB never had conducted any governmental or community functions as a Tribe, and that it had abandoned tribal relations voluntarily at some undefined time between 1969 and 1979. The inclusion of the UKB's name on the Interior Secretary's 6 February 1979 Federal Register listing of federally-recognized tribes, therefore, was a fluke. Swimmer did not bother to check departmental determinations on the UKB's status during the 1970s, or request documentation of continuing tribal relations; Swimmer simply undertook systematic efforts to void the status of the UKB. In separate letters dated 27 April and 30 April 1979, Swimmer asked Congress to exercise its authority under Section 8 of the UKB Charter to nullify the Charter. However, the Department concluded that Congress also would have to void the UKB Constitution to complete the transaction, and that spelled TERMINATION. TERMINATION was not a popular word any more. Thereafter, Swimmer made the termination of the UKB a personal crusade. These efforts are a primer for third party challenges of tribal status throughout the United States. U. S. Secretaries of Interior and Assistant Secretaries of the Interior for Indian Affairs from Gerard to Swimmer ignored the congressional mandate respecting the sovereign rights and entitlements of the UKB. While he was Assistant Secretary from September 1985 to January 1989, Swimmer used his office to promulgate a series of negative determinations against the UKB. Afterwards, Swimmer freely cited decisions of his own administration as authority in lobbying his successor, Dr. Eddie Frank Brown. Although the CNO successfully blocked all Federal funding, services, and trust land acquisition for the Band while Brown was in, the BIA never altered its basic position, consistent with the 1946 intent of Congress, that the UKB enjoys a government-to-government relationship with the United States. See Letter, 10 July 1989 Decision, Acting Superintendent Cecil Shipp, Tahlequah Agency, BIA, "TO WHOM IT MAY CONCERN," verifying the "Federal recognition of the United Keetoowah Band of Cherokees of Oklahoma as a federally recognized tribal entity;" also, Letter, 24 July 1992 Decision, Area Tribal Operations Officer Rosella C. Garbow TO WHOM IT MAY CONCERN, certifying and authenticating the UKB's Roll; and Letter, 24 August 1992 Decision, Acting Assistant Secretary Ronald Eden to Chief John Ross, UKB, confirming that the UKB is an autonomous fully federally-recognized Tribe, eligible for separate services and land acquisition, but for Amendment 86 of P. L. 101-116, 2nd Sess., 1991. CNO failed to challenge these determinations in any way under the APA. In a Letter dated 10 November 1989, Senator Daniel K. Inouye, Chairman of the Senate Committee on Indian Affairs, to John Ross, then Treasurer of the UKB, Senator Inouye assured the UKB: Your status as a recognized tribe is not in question. However, the decision of the BIA in 1980 to designate the Cherokee Nation as the recipient of 638 grants and contracts, to the exclusion of your tribe, is now being reviewed. It is certainly my hope that the review will be favorable to the right of the United Keetoowah Band to contract for its own programs and services. In United Keetoowah Band - Cherokee Nation, 30 October 1990, a memorandum from Dr. Eddie Frank Brown to the Solicitor of the Department of the Interior, Brown covered the Department's position paper on the UKB issue. The Assistant Secretary concluded, "the United Keetoowah Band has been recognized as a tribe since 1950, and we do not want to withdraw that recognition. Absent Congressional action, we do not have the authority to do so." The memorandum substantiated the sovereign claims of the UKB from 1939 to the present, except that he had failed altogether to review the record and determinations of the BIA and the Band proving that the UKB has a distinct, 1949 Base Roll and separate membership criteria from CNO. Referring to the OIWA, the Position Paper recalled: The OIWA allows "the Indians of Oklahoma to exercise substantially the same rights and privileges as those granted to Indians outside of Oklahoma by the IRA." H. R. Report No. 2408, at 3. Thus, the Indian governments that reorganized under Section 3 of the OIWA are of the same legal and independent character as those non-Oklahoma Indian tribes that reorganized pursuant to Section 16 of the IRA (25 U. S. C. Section 476). The equities here are not on the side of the U. S., Oklahoma or CNO. The UKB, as a matter of Federal-Indian law, is a government organized under OIWA and IRA since 1950. The UKB is in no sense subordinate to the CNO. The UKB Charter and Constitution are senior to the 1975 CNO Constitution (CNCA), which is not a proper organic document under OIWA and IRA. CNO has had the opportunity to accept funds and contract out programs under P. L. 93-638 to the exclusion of the UKB, allegedly on behalf of and for the benefit of the UKB, and now is participating in Self-Governance agreements with the U. S., purporting to represent the interests of the UKB. CNO is incompetent to represent the interests of the UKB, lacks sovereign interests over the affairs of the UKB, and has had no formal intersovereign relationship the UKB since 4 March 1906. To test these statements, one needs only to review the status and history of Cherokee Nation since at least 1898. * * * Notwithstanding the Agreement with the Cherokee Nation, April 1, 1900, which declared the intent of Congress that the governments of the Five Civilized Tribes would expire in 1906; and notwithstanding other statutes that pared away particular governmental functions of Cherokee Nation and the other four Nations in the meantime; the 1906 Act nonetheless preserved certain residual, primarily executive powers of the Five Tribes' governments, while restoring none of the terminated functions, or the revoked Constitutions. Under the OIWA (1936), any Oklahoma tribe theoretically could form a council, adopt a constitution, by-laws, and charter with secretarial approval, and reorganize under the IRA, just as tribes in other states could. However, in a Memorandum to the Indian Organization Division regarding the eligibility of Cherokee Nation in particular to avail itself of the benefits of the OIWA, the Director of Lands of the Department of the Interior determined on 25 October 1937 (File #163618), that: It is not believed that the Oklahoma Welfare Act may be used as authority to reorganize the existing tribal government of the Cherokee Nation. On the contrary, the Act appears to contemplate the creation of a new, separate and distinct organization, to adopt its own constitution and bylaws and to procure a charter of incorporation without regard to the existing government. It is believed that the powers and jurisdiction of the new organization should be limited to the property and other benefits to be acquired under the Act. Those persons whose names are on the final rolls of the Cherokee Nation have certain rights in the remaining assets of the tribe, and if any attempts were made to deny them the right to vote on matters that may affect such rights, it would doubtless give rise to litigation. CNO claims all the benefits and advantages of OIWA and IRA reorganization, with none of the burdens or responsibilities. CNO claims to be full and exclusive successor to the powers and assets of the Old Cherokee Nation, with the right to discriminate among classes of descendants with impunity. CNO claims title to all the IRA purchases for a Cherokee tribe organized in Oklahoma under OIWA and IRA, although the only such tribe is the UKB. No Act of Congress, judicial determination or administrative decision ever has contradicted or reversed the 25 October 1937 determination expressly. * * * The Act of Oct. 22, 1970, 91st Cong., 2nd Sess., P. L. 91-495, 84 Stat. 1091, the "Bellmon Bill," "Authorizing Each of the Five Civilized Tribes of Oklahoma to Select Their Principal Officer, and for Other Purposes," exemplified efforts to overrule the BIA's interpretation of the 1906 Five Tribes Act, under which the U. S. appointed the Principal Chiefs. The Act restored the Cherokee Dawes enrollees' and descendants' right to select leaders, but did not revive suspended powers which earlier legislation had dissolved, suspended, or conditioned. While restoring the opportunity to exercise certain inherent rights of sovereignty, the Bellmon Bill extended to the Cherokee Nation no exemptions from the procedural requirements for organization under the OIWA. In 1971, Cherokee Nation reelected Principal Chief W. W. Keeler in an informal national plebiscite. In Harjo v. Kleppe, 420 F. Supp 1110 (D.D.C. 1972), aff'd. sub nom. Harjo v. Andrus, 581 F.2d 949 (D.C.Cir. 1978), the U. S. Supreme Court determined that the Curtis and Dawes legislation had preserved the governments of the Five Tribes to the extent Congress had not limited their powers. OIWA, IRA, and later legislation made it possible for some of the Five Tribes to organize new governments in the 1970s and regain aspects of their sovereignty that earlier congressional Acts had restricted or eliminated. However, eligibility to reorganize is not the same as reorganization; reorganization, as the UKB can attest, can be an excruciatingly demanding process. As a matter of administrative convenience, the Secretary of the Department of the Interior and Congress condoned the unconventional quasi-reorganization of the CNO that followed the last term of Principal Chief W. W. Keeler (1971-1975). As the Cherokee Nation drafted a Constitution, the CNO properly relied on Harjo in concluding that CNO indeed had retained aspects of inherent sovereignty through the years; however, their analysis did not consider the problem of the erosion of Cherokee Nation's sovereignty through congressional and administrative acts which still had its effects on Cherokee Nation, leaving intact only unaffected aspects of inherent sovereignty. Commissioner of Indian Affairs Morris Thompson approved the Constitution for referendum on 5 September 1975, as "seconded by Principal Chief of the Cherokee Nation, Ross O. Swimmer" on 2 October 1975. Voters approved the Constitution the next year in a tribal election, not a secretarially-supervised Federal election in a manner comporting with Federal regulations governing the conduct of OIWA and IRA elections (now at 25 C. F. R. Section 81). Article I of the CNO Constitution, "Federal Regulations," stipulates that: . . . [T]he Cherokee Nation shall never enact any law which is in conflict with any Federal law. Objectively speaking, the content and structure of the CNO Constitution itself flagrantly violated Federal law regarding reorganization of Oklahoma tribes, if reorganization under OIWA was the intent of the framers. However, Article I of the CNO Constitution, "Federal Regulations," also stipulates that: The Cherokee Nation is an inseparable part of the Federal Union. The Constitution of the United States is the Supreme law of the land; . . . [Emphasis added] This language leads one to conclude that the CNO depends for its primary source of Constitutional, sovereign authority on the sovereign power of the United States, under the U. S. Constitution, and secondarily on the residual inherent powers remaining to the CNO since 1906, to the extent that Congress has restored those powers since the Agreement with the Cherokee Nation, 1 April 1900. Since CNO has not availed itself of the opportunity to reorganize under OIWA and IRA, the form of organization under which the Tribe now operates requires only secretarial condonation of the actions of a Principal Chief, whom CNO voters now select and may remove from office, operating under a governmental form of administrative convenience. The 1975 CNO Constitution, then, is a means for CNO to conduct business as other tribes do, while leaving the 1906 status quo of Federal management of, and authority over, Cherokee Nation affairs essentially intact. This means that, though selected by voters, the Principal Chief of Cherokee Nation is essentially a colonial Viceroy subject to the will of the U. S. Executive Branch. CNO's Constitution, at "Article XVIII. Adoption" stipulates that: This Constitution shall become effective when approved by the President of the United States or his authorized representative and when ratified by the qualified voters of the Cherokee Nation at an election conducted pursuant to rules and regulations promulgated by the Principal Chief. The legal effect of this Article depends entirely on precisely the same presidential or secretarial deputization of the Cherokee Nation Principal Chief, and approval of the Principal Chief's actions, that Congress contemplated in the 1906 Act. The 1975 CNO Constitution purported to supersede the 6 September 1839 Cherokee Nation Constitution (CNCA, "Article XVI. Supersedes Old Constitution 1839," stating, "The provisions of this Constitution overrule and supersede the provisions of the Cherokee Nation Constitution enacted the 6th day of September 1839.") This simply reflects the common understanding that since the old Constitution was a dead letter in 1906, any new approved Constitution supersedes the old. Every other Oklahoma tribe that organized under OIWA and IRA had to obtain secretarial approval of a Constitution, then secretarial approval of an OIWA draft charter. Thirty percent of the qualified voters were then supposed to ratify a Constitution, and then the Charter, in separate sequential Federal elections. By law, the Charters (not the Constitutions) of OIWA/IRA organized Oklahoma Indian tribes delineate most of the powers of such tribes. CNCA, the annotated Code of Cherokee Nation of Oklahoma, contains the 1975 Constitution, code, treaties, agreements, and Self-Determination legislation, and even the 24 January 1983 speech of President Reagan on Indian Policy, but one searches in vain for any mention of the Oklahoma Indian Welfare Act or the Indian Reorganization Act because the CNO Constitution evolved largely outside the body of modern Federal-Indian law which is mandatory for other Oklahoma tribes, including the UKB. Despite occasional explorations of the possibility of reorganizing, Cherokee Nation of Oklahoma never has proposed or received an OIWA Charter from the Secretary of the Interior, or submitted its approved Constitution to a secretarially-supervised election as the OIWA, 25 C. F. R. 81, and 25 U. S. C. 476/479 of the IRA require. In contrast, in helping to draft the UKB Charter of 1950, the BIA ordered the UKB to design the document so that the UKB itself could extend such a Charter to an organization composing the non-Keetoowah Dawes enrollees of Cherokee Nation. Oddly enough, until the UKB alters its Constitution to make 1/4 Cherokee blood quantum mandatory for future members under the proposed Amendments, the Cherokee Dawes Roll descendency group composing the population of Cherokee Nation of Oklahoma still has the right, in theory, to apply for reorganization under UKB jurisdiction, with the consent of the UKB Council. Of course, to date, the Cherokee Nation of Oklahoma never has sought an OIWA charter through the UKB. In 1950, the Secretary declared, in approving the UKB Charter, Constitution and By-laws, that "All officers and employees of the Interior Department are ordered to abide by the provisions of the said [UKB] Constitution and By-laws." [Letter, 9 May 1950, William E. Warne, Assistant Secretary, approving the Constitution and By-laws. *: IV] Recall that the CNO Constitution, Article I, "Federal Regulations," stipulates: [T]he Cherokee Nation shall never enact any law which is in conflict with any Federal law.(Cherokee Nation of Oklahoma Constitution, CNCA, 2 October 1975) Cherokee Nation's laws attacking the sovereign rights of the UKB plainly violate Federal law. Neither Congress nor the BIA appear to care. If the Constitution of Cherokee Nation of Oklahoma has any legal effect, then the actions of CNO toward the UKB since 1975 which contradict the organic documents or laws of UKB are entirely ultra vires. CNO refuses to recognize the existence of the UKB, while claiming that the UKB and its members are citizens and subjects of CNO. The Keetoowah Band, which now is the UKB, remained when the Old Cherokee Nation Constitution was revoked in 1906. The Cherokee Nation's claims of jurisdiction over the UKB died with the old organization, though the Cherokee Nation or Tribe continued to exist for certain purposes as the 1906 Act provides. The reorganization of the UKB under OIWA and IRA affirmed conclusively the separate sovereign interests and identity of the UKB. (Recall that Article XVI of the 1975 CNO Constitution expressly overruled and superseded "the provisions of the Cherokee Nation Constitution enacted the 6th day of September 1839.") Nothing in the CNO Constitution expressly recognizes the UKB or its members or entitles them to membership or registration in CNO. In contrast, while recognizing the Delaware Tribe as a part of CNO which is allowed separate organization under CNO subject to CNO authority, CNO bars the Delaware Tribe from undertaking any actions contradicting the authority of CNO (Cherokee Nation of Oklahoma Constitution, CNCA, 2 October 1975) Congress has restored certain powers to CNO since 1937, thereby making it easier for CNO to function without reorganizing the Cherokee Tribe under an OIWA/IRA government. The BIA and Congress have limited the effects of pre-1096 legislation on the Cherokee Nation in ways that have allowed CNO to exercise aspects of sovereignty that Congress had diminished or restricted in 1906, including aspects of criminal and civil jurisdiction. In 1991 (proving that despite all the self-righteous cant to the contrary, Lobbying is all), Congress extended permission in Amendment 86 to P. L. 101-116 for CNO to undermine the property and governmental rights of the UKB. The impact on UKB and its members has been dangerously discriminatory. The effect is the confiscation of a vested property right without due process. * * * The bar against UKB's eligibility for any Federal funding, including funds from the Administration for Native Americans, may be permanent. At the same time that the BIA conceded the Band's existence as an autonomous entity (24 August 1992), the BIA also acknowledged the Band's eligibility to receive land in trust. From then on, the CNO undertook a campaign with the support of the Oklahoma delegation to assure that the UKB will have no opportunity to acquire land in trust in any other state. On 26 January 1993, Principal Chief Wilma Mankiller of Cherokee Nation of Oklahoma included the UKB in a list of some 40 unrecognized petitioning groups claiming Cherokee extraction in an advisory letter to governors in their respective states, although the name of the UKB appears on the Federal Register listing of recognized tribes. The official excuse from CNO spokesperson Mr. Lee Fleming for this flagrant misrepresentation was that the letter was intended "for information" only, and therefore, CNO could not be held responsible. To the contrary, Chief Mankiller's shield is sovereign immunity, since her letter purported to be an official intergovernmental communication. The UKB has received no gesture of apology or retraction for this "error," and shall receive none. The actions of CNO require the approval of the Secretary; therefore, these calculated attacks have the official authorization of the Secretary. Cherokee Nation of Oklahoma, ever confident that political pressure eventually will lead to the congressional revocation of the UKB Charter or to a requirement that the UKB submit to the acknowledgment process at 25 CFR 83, already have characterized the UKB in deliberately fraudulent public statements as a petitioner for acknowledgment. In a determination published in the body of the Proposed Rule Regarding Department of Interior Policy on Recognition of Indian Tribes, Vol. 56, No. 161, Federal Register 47320 (Sept. 18, 1991), the Secretary finally declared that when any third party attacks the status of a federally-recognized tribe, the Department will protect only tribes who have survived the 25 CFR 83 process; any other tribe's only recourse is to use the Federal acknowledgment process to vindicate itself. CNO has tried and failed repeatedly to force the UKB to submit to the tests of the acknowledgment process to eliminate the Band. At this point, the UKB, though a recognized tribe, is ineligible even to apply for funds for status clarification from the Administration for Native Americans for which unrecognized tribes are eligible due to CNO's intervention. The UKB's status problems stem entirely from the perception that the UKB competes with CNO, and from the false perception that both share the identically same population; ironically, that competitive atmosphere emanated directly from CNO's decision to eliminate the UKB. THE NON-PETITION OF THE NON-TERMINATED, TERMINATED, UNACKNOWLEDGED, UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA FOR RESTORATION UNDER 25 C. F. R. 83 (NOT TO BE CONFUSED WITH A REQUEST FOR RECOGNITION) In 1990 and 1991, Principal Chief Wilma P. Mankiller demanded of the BIA and Congress that the UKB be compelled against their own will and best interests to submit to the Federal acknowledgment process to prove their status as a tribe. Initially, she demanded congressional hearings that would compel the Band to produce, in effect, a complete documented petition seeking acknowledgment. Having achieved the de-facto termination of the Band in the passage of Amendment 86 to P. L. 101-116, she did an about-face, claimed in a letter to the appropriate congressional leaders and committees that neither CNO nor the UKB wanted a hearing on the matter in spring of 1992 in Tahlequah, and that Chief John Ross had agreed to send a similar request. Chief Ross never made such an agreement and never sent any such letter. The narrative and bibliographies below will address the criteria for acknowledgment in 25 CFR 83.7 that require the Band to prove that it: (a) [Has been i]dentified from historical times until the present on a substantially continuous basis, as "American Indian," or "Aboriginal;"(b) [Is a Tribe, a substantial portion of which inhabits] a specific area or [lives] as a community viewed as American Indian and distinct from other populations in the area and [prove that its] members are descendants of an Indian tribe which historically inhabited a specific area; (c) Has maintained tribal political influence or other authority over its members as an autonomous entity throughout history until the present; (d) Provides a copy of a governing document or statement describing in full the membership criteria and procedures through which the group currently governs its affairs and its members; (e) Has membership consisting of individuals who have established descendancy from a tribe which existed historically or from historical tribes which combined and functioned as a single autonomous entity; (f) Has membership composed principally of persons who are not members of any other tribe; and, (g) Is not expressly terminated or otherwise forbidden to participate in the federal-Indian relationship by statute. The Band has met criterion 25 CFR 83.7, in that the Band has provided on many occasions to all interested parties and the public: (d) . . . a copy of a governing document or statement describing in full the membership criteria and procedures through which the group currently governs its affairs and its members," consisting of a 3 October 1950 Charter, a 3 October 1950 Constitution and By-laws, over 50 years of resolutions, ordinances and statutes, a 1949 Base Roll as amended in 1985, and continuing enrollment updates between 1949 and the present. Other membership-related criteria of 25 CFR 83.7 require the Band to show that it: (e) "Has membership consisting of individuals who have established descendancy from a tribe which existed historically or from historical tribes which combined and functioned as a single autonomous entity;" namely, the Keetoowah Band of Indians of the Cherokee Tribe; and, (f) "Has membership composed principally of persons who are not members of any other tribe." The narrative will address criterion (g) later. United Keetoowah Band of Cherokee Indians in Oklahoma meets the criteria the Acknowledgment and Research Branch of the BIA uses for determining existence an Indian Tribe (25 C.F.R. 83.1-11, redesignated 1985). The following section applies historical Federal, tribal and other records to demonstrate that the Band can satisfy the requirements of 25 Code of Federal Regulations Sec. 83. 7 (a) - (g). Bibliographical citations are in the full narrative and appendices. Below appears a summary of the accompanying narrative, establishing the evidence supporting the Band's contention that it meets the following criteria for acknowledgment in 25 CFR 83.7. The UKB will demonstrate that the Band: (a) "[Has been i]dentified from historical times until the present on a substantially continuous basis, as 'American Indian,' or 'Aboriginal,'" as cited in Federal, Territory, State, Tribal records and scholarly sources; (b) [Is a Tribe, a substantial portion of which inhabits] a specific area or [lives] as a community viewed as American Indian and distinct from other populations in the area and [prove that its] members are descendants of an Indian tribe which historically inhabited a specific area," as cited in Federal, Territory, State, Tribal records and scholarly sources; and, (c) "Has maintained tribal political influence or other authority over its members as an autonomous entity throughout history until the present," as cited in Federal, Territory, State, Tribal records and scholarly sources. In the narrative, a note ("a", "b", and/or "c") follows each statement, indicating which one or more of these criteria that particular statement addresses. The Brief UKB Chronology covers the same basic points. 1. At the old Mother Town of Keetoowah in Swain County and its affiliated smaller towns, North Carolina, political succession continued through elected Captains and a Chief (pre-contact until about 1833; a, b, c). 2. The Keetoowah Indians, despite great disruption of their culture and political town structure between the American Revolution and the Removal period, retained as much as they could of their primary rules and ways, by enforcing traditional laws through customary sanctions and the law of blood (a, c). 3. Following their removal to Indian Territory with the Old Settlers (mostly between 1805 and 1835; a, c) as well as Eastern Emigrants (1835- 1840; a, c), the Keetoowah Indians reorganized under a Constitution in 1858 in Oklahoma, drawing in Keetoowah adherents from all nine Districts, but primarily from the region composing five northeastern Oklahoma counties today (b). 4. The Keetoowah Indians called their organization the Keetoowah Society, and throughout the nine Districts, they worked to resume the role the Mother Town of Keetoowah enjoyed in pre-contact and pre-Removal historical times under the leadership of local headmen called "Captains" and a Head Captain or "Chief" (a, b, c). 5. As early as the Civil War, conflicts arose about the purposes and directions of the organization, so that while some Keetoowahs wanted to preserve the ancient Keetoowah culture, language and religion in pure form as possible, others preferred to amalgamate the old ways with what they wanted from non-Indian culture, including christian churches (a). Indeed, the followers of the Jones family of church leaders were instrumental in the reorganization of the Keetoowahs in the 1850s (a). 6. In their efforts to preserve the Keetoowah group as a political entity, some factions preferred a more militant role in opposing the Southern Confederacy, particularly the so-called "Pin Indians;" but all loyal Keetoowahs supported the Union (a, c). 7. While the Keetoowah Indians remained loyal to the end of the Civil War, they shared the common humiliation of all Cherokees resulting from the punishment of Cherokee Nation for its official position of siding with the Southern Confederacy (a, c). 8. The Treaty of 1866 abrogated all earlier treaties to the extent they were inconsistent with the 1866 Treaty. The Keetoowah delegates to the Treaty convention very reluctantly signed (a, b, c). 9. When congressional investigations led to the discovery of widespread corruption in the Indian Service and the Five Tribes governments, and when proponents of Oklahoma statehood pressed for elimination of the original tribal governments, the Keetoowah Indians had to make difficult decisions regarding the direction of the tribe (a, c). 10. While they intended to maintain a tribal government and functions regardless of the fate of the Cherokee Nation as a whole, the Keetoowah Society eventually acquiesced to the Agreement with the Cherokee Nation, April 1, 1900, the Curtis Act and the 1906 Act, to the political dissolution of the corrupt Cherokee government that the Keetoowahs loathed anyway, and to the allotment in severalty of Cherokee lands (a, b, c). 11. When Cherokee Nation was dissolved, members of the Society lived throughout most of the old Cherokee districts (but with small constituencies in Cooweescoowee and Canadian Districts; a, b, c). 12. Many Keetoowahs regarded the prospect of allotment of the Tribe's lands in severalty as so calamitous that they withdrew from the Keetoowah Society (a, b). Several hundred of these Keetoowah Indians formed a number of secretive, traditionalist, exclusive factions as early as 1893, including the Nighthawk Keetoowahs, that refused until 1910 or later to accept the work of the Dawes Commission (a, b). These groups were clustered around Gore and Vian, in Sequoyah County. 13. In 1905, knowing that the Cherokee Nation was about to dissolve for useful purposes, the Keetoowah Society reorganized. Using a Federal Corporate Charter from the Territorial District Court in Tahlequah, as the Keetoowah Society, Inc., this faction attempted to function as a polity composed of a Chief and Council (20 September 1905) for the express purpose of carrying on the political and social functions of a Band, but because it omitted opposing factions that arose after 1900, never fully again represented the interests of the Keetoowah Indians as a body (a, b, c). 14. The other main faction, the Nighthawks, some of whose leaders now erroneously claim the UKB is a splinter of their religious cult, withdrew from political activity and barred its members from affiliation with any other groups or entities, including christian churches (a, b, c). 15. As the number of tribal towns associated with the Nighthawks dwindled between 21 in about 1900 to 3 in 1937, the remnants of the "non-political" Nighthawk faction eventually split into a variety of factions, including two ceremonial grounds run by factions of Redbird Smith and his family, as well as the Goingsnake "Seven Clans" fire and the Four Mothers Nation. Other Cherokee political factions of Keetoowahs arose, partly due to concerns about potential claims, partly to organize formally as a Tribe. These factions of Oklahoma Keetoowah Cherokees pulled together a coalition from the northern 14 counties of Oklahoma between 1920 and 1924 to elect a Chief (Levi Gritts), and an Executive Council (a, b, c). 16. During the 1930s, the Keetoowah factions, now without any support from several dwindling groups of Nighthawk separatists, supported the idea of reorganizing all the Keetoowah Cherokees in all the old clan districts as a united Band. They hoped to avail themselves of the benefits of the proposed Indian Reorganization Act. At a hearing in Muskogee on 22 March 1934, Keetoowahs showed up in force to present John Collier and his staff with a formal petition and letter of endorsement for the Bill (a, b, c). Collier complemented the Keetoowah Band's enthusiasm and understanding for reorganization in a variety of writings and press releases. Felix Cohen, Associate Solicitor for the Department of the Interior, carefully monitored their public, highly organized efforts in support of IRA (a, c). 17. The Land Division in the Department of the Interior concluded in 1934 that while the Cherokee Nation was neither interested in reorganizing because most members had abandoned tribal relations, nor even capable of doing so, the Keetoowah Indians were willing and probably able to reorganize in Oklahoma with great success, if the factions would only pull together (a, b, c). 18. Though the participation of Oklahoma Indians in the IRA was not possible until the Thomas Bill of 1936 enabled reorganization under IRA through the OIWA, the Keetoowahs never lost sight of their goal, and the Keetoowah Society, Inc., sought permission to represent the Keetoowah Indians, including the various factions whose members refused to join the Keetoowah Society, Inc. (a, b, c). This effort faltered briefly when Associate Solicitor Frederick Kirgis issued his Keetoowah Society Opinion in 1937, saying that the Society, standing alone, was only a society of the Keetoowah Indians, not a Band [Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs: 1917-1974, Vol. I (Washington, D. C.: U. S. Department of the Interior, 1975), p. 774] (a, b, c). 19. Undeterred, the Keetoowah Indians began working with the Organization Field Agents through Five Tribes Agency after 1937. It was only after the Kirgis Opinion that BIA's Five Civilized Tribes Regional Organization Director A. C. Monahan learned that the Keetoowah Society, Inc., was the source for all the other factions, and that the Corporation had held a Federal Corporate Charter as a political entity since 20 September 1905. Monahan ordered agents Dwight and Exendine to aid the factions to reorganize. D'Arcy McNickle's determination of 24 April 1944 found the UKB was a historical tribe. Rather than merely ask the Solicitor to rewrite the opinion, the Acting Secretary, Abe Fortas, to request congressional action allowing the UKB to reorganize under OIWA and IRA. 20. The UKB adopted a Constitution and By-laws. They elected officers between 1939 and 1946, seating a Chief, Reverend John Hitcher, and a Council (a, b, c). Work among various factions united most Keetoowahs (a, b, c). 21. Some Five Civilized Tribes Agency employees hoped to use the Band as a vehicle for restoring the Old Cherokee Nation, or at least for reorganizing all the Cherokee Dawes Commission enrollees and their descendants under OIWA and IRA, because the Director of Lands, Land Division, Department of the Interior, already had decided that while the Cherokee Nation was not terminated, any new organization of the Cherokee Tribe would have to be an entirely new entity whose property rights would stem from the OIWA and IRA.[(MEMO TO INDIAN ORGANIZATION, 25 October 1937, from Director of Lands (WDW) to Daiker, Indian Organization (163618); see also Solicitor's Opinion, 1 October 1941, 1 Op. Sol. on Indian Affairs 1076 (U. S. D. I. 1979)] 22. The Secretary determined that an organization of the Keetoowah Band, made by reuniting the various Keetoowah factions who wanted to participate, does not conflict with the residual government of the Cherokee Nation. The latter was to retain its 1907 status, as a body under a Principal Chief whom the President (later, the Secretary of the Interior) appointed to carry out responsibilities regarding the disposition of the assets of the Old Cherokee Nation (a, b, c). 23. The UKB carried out its own governmental functions in Oklahoma as a reorganized body, without interfering with the Cherokee Nation, its Principal Chief or his functions, because the UKB interests in Cherokee- related issues was entirely restricted to interests of the UKB constituency. That constituency consisted primarily of restricted Indians, non-Dawes enrollees, and other Keetoowahs who remained loyal to the Keetoowah political ideals (a, b, c). 24. So, the United Keetoowahs finally decided by 1942 to remain exclusively a "Keetoowah" polity that would include only those of Cherokee descent who met the membership requirements of the united Band (a, b, c). On 24 April 1944, Assistant Commissioner D'Arcy McNickle found that the UKB was a historical tribe, and meeting with BIA's Chief Counsel on 5 June 1944, recommended that Congress pass legislation to clarify the UKB's status and right to reorganize as a tribe under OIWA and IRA. 25. Since the UKB reorganization process could not begin until Congress agreed to offer the UKB the opportunity to reorganize under OIWA and IRA, Acting Secretary Abe Fortas, Congressman Stigler and Senator Thomas, among others, supported the effort, and on 10 August 1946, Congress did pass the Keetoowah Act as part of a package measure that included a gift of land to the Cheyenne-Arapaho Tribe in Oklahoma. The reorganization process took another four years (a, b). 26. The UKB, incorporating all the factions of the Keetoowah Indians of the Cherokee Tribe throughout the nine districts of the old Cherokee Reservation, has reposed its secular governmental authority in the line of democratically-elected Chiefs (also informally called, in the 1940s, "Presidents") Executive Officers and Tribal Council under its OIWA corporate Charter, Constitution and By-laws, since 3 October 1950 (a, b, c). 27. Between 3 October 1950 and 3 October 1960, while the Secretary retained approval authority over the UKB according to the UKB organic documents, the Secretary could have authorized the Principal Chief of Cherokee Nation to act as the Secretary's agent in approving decisions of the UKB; but the Secretary made no such delegation of authority to Principal Chief Keeler. Any such delegation of authority would have expired on 3 October 1950, according to the Department's own determination (see Letter, 15 October 1961, from Assistant Chief Tribal Operations Officer Pennington to Muskogee Area Director Virgil N. Harrington, regarding Harrington's 7 August 1961 inquiry as to the effect of Sections 5, 6 of the UKB's Charter on secretarial approval authority after 3 October 1960). Finally, despite undocumented and spurious claims to the contrary, archival sources demonstrate that the Band has continued to survive and function as a tribal entity since reorganization under one unified government, despite internal factionalism characteristic of all governments (a, b, c). 28. When the UKB Council attempted to establish tribal offices at various sites, and when the UKB created an Enterprise Board and attempted to engage in economic development ventures to serve its members and finance advocacy activities within the fourteen northeastern counties of Oklahoma, CNO consistently intervened and made off with the opportunity or spoiled it whenever possible, rationalizing that a UKB opportunity is a CNO opportunity. For example, the UKB attempted to develop a bingo business at Roland, Oklahoma, and had arranged an economic development plan and approached the BIA with a land acquisition request, the BIA denied the request, and promptly handed the business opportunity directly over to CNO. CNO easily obtained secretarial approval of their Roland land acquisition request, and now runs Bingo Outpost on the spot, while claiming that the UKB is unrecognized, selling sovereignty, and only wants recognition to do gaming. When the UKB established over a score of smokeshop operations throughout a three- county region, CNO and the State cooperated to undermine and shut down all the operations.(a, b, c) 29. In 1987, in the course of intervening to take over the UKB's opportunity to buy an abandoned horserace track in Rogers County called Blue Ribbon Downs, CNO retained a law firm to investigate CNO's legal status to determine whether it would be legally possible for CNO to engage in a horserace track operation.(DeGeer and Bread, "Federal Legislation Affecting Cherokee Nation," Memo to Gene Stipe, Stipe Law Firm, McAlester, Oklahoma, 2 November 1987) This evaluation of the legal status of Cherokee Nation of Oklahoma as of Fall 1987 surveyed or contained: * Overview of the history of the laws impacting the Five Civilized Tribes * 19 Treaties with the U. S. (and limitations imposed therein) * Curtis Act of 1898 * 1901 Cherokee Agreement * Cherokee Constitution * Jurisdictional Map * Solicitor Opinions believed to be pertinent. This analysis does not claim that CNO has reorganized under OIWA or IRA, referring instead to the 1906 Cherokee Nation Constitution, as superseded in the 1976 CNO Constitution, and the legal effect of various Acts of Congress preserving or limiting CNO's sovereign authorities. The memo describes limitations on the inherent sovereignty of the tribe that congressional legislation has imposed since 1890, which only reorganization under OIWA and IRA could remedy. The memo does not deal with the relationship between the CNO and the UKB, doubtless because the authors realized the CNO has no sovereign authority over the UKB. The memo concluded that CNO's claims to inherent sovereignty are in doubt, and the writers recommended that CNO comply with all state laws, as a precaution, in any development venture.(a, b, c) 30. In 1990, a group of Cherokee Nation of Oklahoma members called the Reformed Keetoowah Party attempted to sweep out the UKB Council, claiming that the UKB was a subsidiary of CNO and never had been federally-recognized, and that the UKB was attempting to start a Civil War in order to create a new tribe. An election contest and lawsuit marred John Ross's succession to the office of Chief. In November 1990, at the urging of Principal Chief Wilma Mankiller, the BIA's Area Office directed staff to review files at the UKB Enrollment Office and compile a list of UKB members who never had registered voluntarily in CNO, finding over 3,000 living members with exclusive UKB enrollment. CNO's continuous interference with internal UKB politics, and an election dispute in 1990 resulted in a determination by the Department of the Interior to force the UKB to operate under a BIA approved Council, pending a new election. The 3 October 1950 Charter, approved by Secretary of the Interior William Warne on 9 May 1950, and the Constitution and By-laws, approved by a popular vote by over 30% of qualified UKB members in a secretarially-authorized and supervised Federal election on 2 October 1950, remain very much intact and effective. Due to secretarial acquiescence, the Band eliminated secretarial approval of its governmental acts as cited in their governing documents by operation of law on 3 October 1960. Also, the Charter, Constitution and By-laws, Enrollment Ordinances, Base Roll, and many updates as recommended by the Enrollment and Membership Committee and adopted by the Tribal Council in individual resolutions from 1950 to the present, show the membership criteria and procedures by which the Band has governed its affairs, regarding membership. The issue of UKB membership receives more extensive review below. It is sufficient here to add that the members of the UKB Tribal Council always have participated in enrollment activities and in the verification of qualifications of prospective members, and always have approved enrollment updates through formal Council action. Tribal membership criteria have altered through the years, as conditions and needs have changed. The 1939 Roll, reaffirmed in 1949, became the foundation of the Base Roll, subject to amendment in the first five years after approval in 1950. During that period, consistent with the 1950 enrollment laws, members of 1/4 or more Cherokee ancestry, using the Dawes Roll or other acceptable proof of Cherokee ancestry by blood, were adopted into the Band. Enrollment activities continued for fifteen years. In 1963, the UKB Council worked on an updated roster as the result of additional membership field work, and for a short time, the enrollment ordinances required new members to prove 1/2 or more degree of Cherokee Indian blood. Enrollment work continued sporadically, until in 1978, when the UKB Council sought aid from Muskogee Agency to restore order following the latter years of Chief Glory's somewhat chaotic administration, and the Enrollment Committee started work on a new addition of adoptees, under a series of new ordinances. New additions to the Roll occurred through Council resolutions in 1980, and in another series of additions, concluding in October 1982. Using funds from a 1984-1986 $70,000 P. L. 93-638 grant to update and revise the Roll, the UKB reinvestigated and updated all members' files and brought their contents up to date, with the active cooperation of Muskogee Agency staff and technical assistance. Comporting with the terms of the grant, the Enrollment and Membership Committee and Enrollment Specialist compiled a list of all members who had met the blood quantum requirements in effect at the date of each individual member's enrollment, then verified which members were 1/4 or more degree, and which members had responded to requests for current information regarding residency, marital status, family status, and other information. The staff compiled information on deaths since the last enrollment update. Information regarding members whose files were incomplete as a result of this investigation, including those who were considered less than 1/4 degree Cherokee, appeared on a separate list of members whose files were incomplete or somehow deficient, and yet who were considered entitled to membership. The Band delivered these compilations to the Muskogee Agency in 1986, and submitted these records to Federal District Court for the Northern District of Oklahoma in Tulsa in 1987, upon subpoena by the State of Oklahoma, as a tribally-certified roll. Cordelia Tyner, a/k/a/ Cordelia Tyner Washington, and the United Keetoowah Band of Cherokee Indians v. State of Oklahoma, ex re., David Moss, District Attorney and David Moss, individually; M. Denise Graham, individually, No. 87-2797, U. S. D. C., N. D., Oklahoma. See also: Appeal from U S. D. C., N.D. Okla. D. C. No. 87-C-29-E, 14 March 1991. UKB Membership Ordinance 90 UKB 9-16 16 September 1990 provided that any descendant of 1/4 Cherokee Indian blood of any enrollee on the 1949 UKB Base Roll, or on any other historical Cherokee Roll, shall be eligible for enrollment in the UKB. Final determinations of Cherokee Indian blood quantum continue to rest with the UKB Tribal Council. Under that same ordinance, UKB members who held affiliation of any kind with any other federally-acknowledged tribe were required to relinquish that membership. THE TERMINATION OF THE UKB For reasons that shall become evident below, the UKB has difficulty responding to the following criterion in 25 C. F. R. 83.7, requiring the Band to show that it: (g) Is not expressly terminated or otherwise forbidden to participate in the federal-Indian relationship by statute. * * * In 1991, Congressman Mike Synar (2nd District, Oklahoma) cited in testimony to a congressional hearing a purported 1980 BIA finding that the UKB had failed to perform is contractual duties under the 1984 grant, because it had not separated registrees of CNO out of the UKB roll.(U. S. Congress, House Interior and Insular Affairs Committee Hearings on 101-116 on FY 1992 Interior Appropriations, United Keetoowah Band of Cherokee Nation (11 April 1991)) Neither the hearing's Chair., Congressman Les AuCoin, nor another witness, Mr. Ronald Eden, caught the patent logical inconsistency in the testimony, in that it would be physically impossible for any employee of the BIA, however prescient, to issue a finding in 1980 about a contracting party's performance on a grant that was not issued until four years later and not completed until six years later. Further, the alleged "finding" was entirely false. A simple perusal of the Grant Letter and Final Report from the UKB Council on the completion of the Enrollment Project would have allayed any real concerns of Congress that the UKB might be incapable of using P. L. 93- 638 funds properly. The real problem was that CNO never wanted the UKB to have separate Federal funds, and certainly never wanted the UKB to have a distinct Tribal Roll. Although the UKB has made repeated efforts to sort out the Roll, and though in 1990 and 1993 the UKB Tribal Council was able to obtain current information (from the Muskogee BIA Agency, not from CNO) regarding the number of UKB members registered at CNO, these numbers have continued to shift as UKB members have attempted to relinquish CNO registration. CNO has been distinctly uncooperative since 1980 as UKB has attempted to develop an exclusive Roll. The CNO actively has encouraged UKB members to re-register after relinquishing their CNO registration, or has refused to accept and record relinquishments (even of UKB officers and administrators). In some cases, CNO has issued apparently unsolicited original registration documents to UKB members and their families who never have applied for registration with CNO in obvious attempts to keep records confused, and to substantiate their claims of dual affiliation. The UKB regularly denies contract services eligibility to UKB members when they attempt to use their UKB credentials to qualify for services, demanding that only CNO credentials are valid. Individuals who offer UKB credentials in the first instance at CNO service agencies characteristically find great difficulty in receiving services afterwards, upon displaying valid CNO credentials. It clearly is inconsistent for CNO to claim the UKB Roll is duplicative of the CNO register, while CNO simultaneously denies the validity of the UKB Roll. However, as a rule, logical analysis rarely comes into play in CNO's discriminatory treatment of members of the UKB. Cherokee Nation of Oklahoma has claimed (since 1979) that all members of the UKB are eligible automatically for registration in Cherokee Nation of Oklahoma, because Cherokee Nation of Oklahoma requires exclusivity of "registration" except for members of the UKB. This contention is untrue, among other reasons, because many UKB members are neither Dawes Commission Cherokee enrollees nor descendants. Cherokee Nation of Oklahoma also has contended (since 1984) that all Cherokee Nation of Oklahoma registrees were (technically) eligible for enrollment with the UKB. CNO is not competent to make this allegation, because UKB membership is a matter for the UKB Council, not any official, Council, or agency of Cherokee Nation of Oklahoma or of the U. S. to decide. In the Muskogee hearings for the American Indian Policy Review Commission on 13 May 1976, Ross O. Swimmer testified, "I think that the tribe's right to define its own membership is extremely important."(AIPRC Final Report, 17 May 1977, p. 522) The American Indian Policy Review Commission found: There are two specific problems facing the Five Civilized Tribes: (1) the reliance on the 1907 Dawes Commission rolls as the sole major determinant of the tribal membership; and (2) the inclusion of the descendants of the freed slaves of the tribes, as a result of treaties made after the Civil War, on the tribal rolls. All descendants of those persons on the Dawes Commission rolls are considered tribal members for purposes of voting in tribal elections and referendums, and distribution of judgment moneys. Therefore, many persons of very little Indian blood are allowed to vote in tribal elections, making decisions which may affect their lives not at all, while affecting Indians greatly. The other membership problem plaguing the Indians of the Five Civilized Tribes is the inclusion of freedmen bands. After the Civil War, the reconstruction treaties of the tribes said that they would provide lands for their freedmen. These freedmen were given allotments which have long since passed into fee simple status. However, the descendants of these freedmen are considered tribal members because of the treaty provisions. It seems strange that the United States has violated almost every provision of those 1866 treaties, yet it holds the Five Civilized Tribes to their word. Again, these people do not identify as Indians, the Federal Government does not recognized them as Indians, yet they make decisions affecting Indians. Clearly, Congress should allow the tribes a method for restricting their membership to persons of Indian descent rather than imposing a Federal definition based on descendancy from the Dawes Commission rolls. The final irony of the situation is that, although the tribes must keep the descendants from the Dawes Commission rolls for tribal political purposes, the Bureau of Indian Affairs provides services only to tribal persons of one-quarter or more Indian blood.(Muskogee hearings, 13-14 May 1977, AIPRC Final Report, 17 May 1977, p. 522) Cherokee Nation of Oklahoma allows registration for voting purposes for non-freedman Cherokees of any degree or source of Indian blood, while the UKB requires the class of future members (i.e., all those adopted after 1949) to demonstrate 1/4 degree Cherokee Indian blood. Because Cherokee Nation of Oklahoma never has reorganized under an OIWA Charter and IRA Constitution, CNO cannot evade restrictions under the Act of 1906 preventing Cherokee Nation from adopting new enrollees, or a new roll. The 1947 Act required those claiming descent from Cherokee Nation to demonstrate that descent by proving lines tracing from persons on the final Dawes Commission Roll of Cherokee Nation. The UKB are not similarly restricted, because the UKB is not part of or subordinate to Cherokee Nation of Oklahoma or subject to the authority of CNO's Principal Chief. Cherokee Nation of Oklahoma contends that its reliance upon the Dawes Commission Roll to determine Cherokee descent and its registration of Cherokee Dawes descendants is as good as the formal adoption of a Roll, for the purposes of proving dual affiliation of UKB members; but the Dawes Roll is not the UKB Base Roll. CNO never adopted any new Roll, or even updated the Cherokee Dawes Roll, which closed on 4 March 1907. When the last of the Cherokee Dawes Roll enrollees dies, the closed Roll will be vacant. CNO never provided for formal adoption of any UKB members individually or corporately, as members of an adoption class, as CNO did in the case of the Delaware Dawes enrollees. Therefore, looking to the precedent of Secretary Manuel Lujan's San Juan Southern Paiute determination (1989), like the Navajo Tribe in the early 1980s, CNO today has no real tribal roll, except for the original Cherokee Dawes Roll. In attempting to comply with the terms of the 1984 P. L. 93-638 Enrollment Update Grant, GO8G14204002, the Band's Registrar initially requested the Department's permission to rely on the 1907 Cherokee Dawes Commission Roll for information. The Band lacked access to their own enrollment records, the original copies of which had been in Federal custody since 1950.(Letter, 9 January 1985, Jane E. McGeisey, Registrar, United Keetoowah Band, to BIA, Tahlequah Agency, re: "Updating from 1949 Base Roll") This letter is the only plausible source we know for the allegation that the United Keetoowah Band ever was substantially out of compliance with the terms of the 1984 P. L. 93-638 Grant, although the Band resolved the problem by relying primarily on the 1949 United Keetoowah Band Base Roll. The Department's response was unambiguously clear in saying that the United Keetoowah Band's Base Roll is not, and cannot be, the 1907 Cherokee Dawes Commission Roll: A memorandum from the tribal registrar is being returned to you due to non-compliance with the present grant. You are locked in with the 1949 base roll as required by the terms of the present grant. This situation can be cleared up with the Muskogee Area Office Tribal Operations staff when they are assigned for technical assistance to assist the United Keetoowah Band in the enrollment process shortly.(Letter, 23 January 1985, Acting Superintendent Cecil Shipp, Tahlequah Agency, Bureau of Indian Affairs, to Chief John Hair, United Keetoowah Band; emphasis added) Upon being assigned to supply technical assistance to the Band, the BIA Muskogee Area Tribal Operations staff should have supplied the United Keetoowah Band's Registrar with access to, if not copies of, the materials in the 1949 United Keetoowah Band Roll Card File. Correspondence in the NARA, Washington, D. C., shows that the BIA took custody of the 1949-1950 Card File supporting the United Keetoowah Band's 1949 Roll in 1950. However, the Band was unable to find or use these materials in compiling the enrollment update, and the BIA made no disclosure to the Band regarding the location of the Card File. For records on receipt and storage of records relating to the enrollment and reorganization of the United Keetoowah Band, see generally: Central Classified Files of the BIA, Department of the Interior. Box 330. Accessions 57A-185. Records for 1948-1952. Cherokee Nation. 00-219 (010.-020.; 050.-059., Box # 12), File # 43292; originally in Box # 36, Accessions 56A-588, 1-58, 14/46:49-1, 1946. Transmittal letters of Area Director W. O. Roberts, Five Civilized Tribes, attest to the receipt and archiving of these materials. Between November 1984 and March 1986, UKB enrollment staff and members of the UKB Tribal Council compiled a list of all members who had met the membership requirements in effect at the date of each individual member's enrollment, including those on the 1949 Roll. Lacking the 1949 Card File, the Band replaced applications for all 1949 enrollees, as well as all enrolled since them whose file jackets were incomplete, defective or missing. The Band verified which members were 1/4 degree Indian blood or more, for whom current addresses and other information was absent, or whose status as active members was otherwise uncertain. The enrollment staff updated all files and compiled two final lists of current members as of 1986, including the most current information regarding residency, marital status and the like. The project staff also compiled information on deaths since the last enrollment update. At the end of the project, the Band prepared a current (1986) Roll of full members in good standing confirmed by the Council to be of 1/4 degree Cherokee Indian blood or more. The Band approved a separate list including Associate or Honorary members, and full members who at one time had been in good standing but whose files still were incomplete or deficient at the end of the Grant. Some files were impossible to update despite good faith efforts by the staff and Council (due to the members' failure to respond to inquiries and supply a current address, or due to uncertainty whether the persons even were alive). Some Associate Members enrolled since 1949 moved to the 1986 list of Full Members in good standing, due to blood quantum clarifications. The final count from the enrollment office was 1376 UKB 1949 members. Of the 1949 files, 764 were amended or updated, either by revised application or proof of demise. The new total, including the 1949 Base Roll and 1986 Current Roll, was 6,050. The UKB completed the 1949 United Keetoowah Band enrollment update, and the Tribal Council certified the enrollment update and the new 1986 Membership Roll on 15 March 1986. The Band transmitted the updated 1949 Roll, the newly approved and duly adopted 1986 Membership Roll, and the Final Report of P. L. 93-638 Grant G08G142002 to the BIA's Muskogee office as a deliverable on 16 March 1986. The Band submitted these records to Federal District Court with a cover note from the BIA Muskogee Area Office, in the course in litigation in 1987 in Cordelia Tyner, a/k/a/ Cordelia Tyner Washington, and the United Keetoowah Band of Cherokee Indians v. State of Oklahoma, ex re., David Moss, District Attorney and David Moss, individually; M. Denise Graham, individually, No. 87-2797, U. S. D. C., N. D., Oklahoma., when the State subpoenaed a copy of the Band's tribally-certified roll. After the completion of the enrollment project, a series of burglaries and incidents of vandalism occurred at the UKB headquarters in Tahlequah, resulting in damage to or destruction of some files and other property. However, all members' files predating 15 March 1986 had been certified already as to their status as of that date. Also, increased security at the tribal offices and continuing updating of files in the course of conversion of the enrollment system to automation has improved record-keeping. Finally, in 1990, after a systematic review of the United Keetoowah Band's enrollment and membership files (and a comparison of those data with the Cherokee Nation of Oklahoma's data), the BIA Muskogee Area Office confirmed, that more than 3,000 members of the United Keetoowah Band, including its Base Enrollees, never were registered with Cherokee Nation of Oklahoma, and therefore never had any form of dual affiliation with that entity. Some 4,700 UKB members either never voluntarily registered with Cherokee Nation of Oklahoma, or once were registered (voluntarily or involuntarily), but subsequently voluntarily relinquished their CNO registration. Since 1950, the UKB has continued to add to its open Roll, and in 1990 adopted a new Enrollment and Membership ordinance, which as amended, continues in effect. Since 1990, over 450 enrolled members of the Band voluntarily have relinquished their affiliation with any other Indian entity. Hundreds of the original UKB members and Dawes enrollees who had registration or membership in CNO have died. On 24 July 1992, Rosella C. Garbow, Muskogee Area Tribal Operations Officer, declared: This is to certify that records created in 1985 show that the United Keetoowah Band of Cherokee Indians in Oklahoma has approximately 4,700 enrolled members residing within their service area. UKB members have continued to relinquish their affiliation voluntarily with any other federally-recognized tribe since that date. The 1986 United Keetoowah Band Roll, completed during the P. L. 93-638 grant, was known to be an official Tribal Roll for all purposes, duly adopted by the Tribal Council, and authenticated by the BIA, within the meaning of Federal Indian Law, in 1991. It is up-to-date, and there are regular monthly additions through adoption, and clarifications of exclusive affiliation through relinquishment from Cherokee Nation of Oklahoma. Regardless of Dawes descendency, it is the policy of the United Keetoowah Band of Cherokee Indians in Oklahoma that all lineal descendants of the 1949 Base Roll and current roll are automatically eligible for membership in the Band. The UKB hoped that the enrollment update and other status clarification efforts would result in separation of their population from CNO's, and would lead to the development of a UKB land base and separate programs. However, a separation of the two populations required the cooperation of CNO, and that was impossible for the UKB to obtain. As a result, the UKB must continue to finance litigation to obtain a clarification of their political and economic rights. In January 1993, the UKB Council has asked the Secretary to convene a secretarially-supervised Federal election to amend the UKB Constitution, requiring 1/4 Cherokee blood and exclusive enrollment in the UKB as qualifications of future membership, while requiring current members to relinquish affiliation in any other tribe by a set date. Having reviewed the history of the UKB in brief, the reader should perceive readily the problems with Mr. Ron Eden's testimony to Congressman Aucoin's committee in April 1991 [at the U. S. House Interior and Insular Affairs Committee Hearings on 101-116 on FY 1992 Interior Appropriations, United Keetoowah Band of Cherokee Nation (11 April 1991)]. The hearing record contained a brief discussion of the BIA's reasons for moving to rescind the 16 January 1980 Letter of Assistant Secretary Forrest Gerard. Gerard's policy prevented separate services and land acquisition for the United Keetoowah Band and the Creek Tribal Towns. The speakers commented on the autonomous status of the United Keetoowah Band organized under the 1934, 1936 and 1946 Acts. Chairman Aucoin then cited what purported to be the Department's own long-standing determination that the Band had failed to carry out its contractual obligations under one P. L. 93-638 grant. Realizing that Eden was loath to agree that the Band was unrecognized or did not deserve recognition, Congressman Aucoin suggested that notwithstanding other law or equities, the Band did not deserve a chance to contract services for the benefit of the Band: Just one second, Mr. Eden. In 1980, looking at Mr. Synar's background information, he says on page 4 of his background paper that, "In 1980, upon reviewing a funding request from the UKB, the Department of the Interior issued the following policy." This is not the full quote but the conclusion of the quote: There is no justification for contracts and/or grants with UKB to provide the same services to those portions of the Cherokee Nation which would be served under the Nation's contracts and/or grants. The only funding the BIA issued was a 1984 grant of $70,000 to help the UKB establish a tribal roll and identify its unique service population. To date, however, the BIA has concluded that the UKB has failed to accomplish either task. What about that? Mr. Eden. Correct. Mr. AuCoin. Those are the Department's own words in 1980. Mr. Eden. Well, that is the policy that we're talking about as a result of the membership of the Cherokee Nation and the Keetoowah Band having the same enrollment criteria and traced to the same base roll. That was the reason that essentially the Gerard policy was put in place. Mr. AuCoin. Why did you change the policy then? Mr. Eden. Well, we started out changing the policy because of another tribal issue; namely, that the Creek towns did not want to continue receiving their services from the Creek Nation.[U. S. Congress, House Interior and Insular Affairs Committee Hearings on 101-116 on FY 1992 Interior Appropriations, United Keetoowah Band of Cherokee Nation (11 April 1991); emphasis added] The date "1980" appears several times in this testimony, always alluding to a finding of the Department supposedly made that year regarding the Band's competency to carry out contractual obligations. Eden twice expressly confirmed the existence of that determination in "the Department's own words." Eden did not address the discrepency between the date of the alleged negative "finding" and the date the grant was awarded, much less admit the "finding" never existed. The "finding" was a citation in Cherokee Nation's briefing materials supplied to the Committee and the BIA. What is most surprising is that evidently, no one at the hearing noticed the falsehood due to a strictly "ends-oriented" agenda. Recall Muskogee Area Tribal Operations Officer Rosella C. Garbow's 24 July 1992 finding that the UKB has an Oklahoma resident population, and service area population, of 4,700, of whom nearly 4,000 now are exclusive UKB members. The Band received Ron Eden's 24 August 1992 determination as Acting Assistant Secretary that the UKB is an autonomous, federally-recognized American Indian Tribe, entitled to separate services and land acquisition in Oklahoma. The alleged "1980 decision of the BIA" only would be significant -- if it existed -- because it purported to reflect on the question whether the Band deserved to serve its own needs, or whether the Band and its members should be compelled to rely on Cherokee Nation of Oklahoma for programs and services. The implication is that the Band was incapable of meeting contractual obligations. The alleged BIA determination obviously could not have been a 1980 "decision" by the Department of the Interior on the UKB's ability to provide satisfactory performance on a 26 November 1984 P. L. 93-638 grant. The purpose of the 1984 grant was not to enable the Band to "identify [the UKB']s unique service population," simply by declaring the roll exclusive, once complete. The purpose of the grant was to allow the UKB to update and verify the contents of individual members' files, in order to correct the 1949 Base Roll and to update the current roll so that the Band could identify its exclusive membership.(Letter, 24 July 1992, Area Tribal Operations Officer Rosella C. Garbow TO WHOM IT MAY CONCERN) Without additional clarification from the records of CNO registration, as confirmed by the BIA after the completion of the project, identification of the unique UKB service population (comprised of those who never had been citizens of any other recognized tribe, and who had relinquished any CNO status) would have been impossible. Identifying the UKB's unique population has continued to be challenging since 1986, because CNO routinely re-registers UKB members who relinquish CNO registration, without their consent or knowledge. CNO now requires UKB members to "show good cause" and imposes a 180-day waiting period before honoring relinquishments. With people supposedly clamoring to register with CNO and over 150,000 on the CNO registry, it is amazingly difficult for UKB members to prevent CNO from registering against their will. Apparently, Congressman Synar's briefing book did not contain a copy of the P. L. 93-638 contract letter to the UKB, correspondence and reports generated during the project, or the Band's voluminous Final Report on the Grant, because that document would have shown the purpose of the Grant and its successful completion. The BIA and Congress ignored the Band's submission of the Final Report, the amended 1949 Base Roll and updated 1986 Roll. Congressman Aucoin concluded with a final question: [A]ssuming no enactment in 1946 or any other year allowing the UKB to organize under section 3 of the Oklahoma Indian Welfare Act, would or could the BIA recognize the UKB as a new tribe or band? Amplify that for the record because obviously Mr. Synar believes that there may be the need for a record to be laid and perhaps legislation to be amended.[U. S. Congress, House Interior and Insular Affairs Committee Hearings on 101-116 on FY 1992 Interior Appropriations, United Keetoowah Band of Cherokee Nation (11 April 1991)] The only item the BIA used to "amplify the record" was the Kirgis Keetoowah -- Organization as a Band Opinion of 29 July 1937. The Department found it inconvenient to cite Acting Secretary of the Interior Abe Fortas's finding, supporting the plan to allow all the various factions of the Keetoowah Indians to reunite and reorganize as a Band.(Senate Report 79 Cong., 2nd Sess., No. 978, 1946, Testimony of Acting Secretary of Interior Abe Fortas; see also, House Report 79th Cong., 1st Sess., No. 444, 1946 and House Report 79th Cong., 2nd Sess., No. 2705, 1946) The Department conveniently forgot that there already was a Federal Charter for the Keetoowahs in 1905. The BIA and Congress refused to refer to records of the Organization Field Agents from 1937 to 1946, or to the legislative history of the 1946 Act, that showed why and how the UKB was reorganized. The Department ignored the 24 April 1944 determination of Assistant Commissioner of Indian Affairs for Tribal Relations Branch D'Arcy McNickle, which recommended that the Department jettison the Kirgis Opinion as fatally defective. It is worth the reader's while to review this document, so it is reproduced here in its entirety. It was this determination that reflected the Secretary's views in recommending the passage of the 1946 Act as a measure clarifying the status of the UKB: In 1937 the Solicitor's Office ruled that the Keetoowah Society of Cherokee Indians was not a band for the purpose of organizing under the Oklahoma Indian Welfare Act. The opinion characterized the organization as "a secret society representing the most conservative portion of the Cherokee Indians", and having for its objective in the beginning, opposition to slavery, and subsequently opposition to allotment. The Solicitor's decision was based largely on information obtained from a report compiled by Charles Wisdom, an anthropologist attached to the Indian Office. Mr. Wisdom in examining into Cherokee history made these conclusions: (1) That while the name Keetoowah was derived from an ancient town, there is no historical connection between the society and that original political group; (2) That there exists only a cultural and mystical relationship between the two. Using the foregoing information the Solicitor, in rejecting the Keetoowah Society's request for recognition as a band, held that a band is a political body, having the functions and powers of government. Likewise, it must possess a common leadership, concerted action and a well-defined membership; moreover, the membership is perpetuated primarily by birth, marriage and adoption. The opinion drew a distinction between the Keetoowah Society and the Creek towns, holding that the latter were independent units capable of political action and particularly the initiation of hostile proceedings; not only were they the functioning political subdivisions of the Creek Confederacy or Nation, but they were the original independent units of government of the Creek Nation. The Solicitor went on to say that "neither historically or actually" was the Keetoowah group a governing unit of the Cherokee Nation but rather it was a society of citizens within the Nation with common beliefs and aspirations. This argument of the Solicitor's Office accepts as fact a fiction which, for its own reasons, the United States Government has insisted on treating as a fact for more than a hundred years. There was not aboriginally a Cherokee Nation. There were among the Cherokee people a number of towns and there was an elaborate interrelationship between these towns, as there was also intertribal relationships as between the Cherokees and the various tribes in the Tennessee valley and along the Eastern Seaboard. The Cherokee people were located in four general areas, referred to as the Lower Settlements, the Valley Settlements, the Middle Settlements and the Overhill Settlements. In a recent study of the Cherokee s published in Bulletin 133 of the Smithsonian Institution by Dr. William Harlen Gilbert, Jr. (1943), the following passage is found: The central area of the Cherokees, comprising the Kituhwa (Middle) and the Valley Settlements, was the heart of the tribe. Later, during the Revolutionary course [and] after the removal in 1838 only fragments of the people remained. Quoting again from Gilbert: By far the largest and most important of the remnantal Cherokee groups after the removal were those clustering around the juncture of The Ocona and Tuckaseegee Rivers near the old settlement of Kituhwa in the heart of the old Middle Settlements. Moreover, the term "Kituhwa" (Keetoowah) is used to designate one of the two dialects still spoken in the Eastern Cherokee area. The foregoing information lends considerable color to the contention of Mr. Boudinot, namely, that the term "Cherokee" never should have been taken as a tribal name; that in actuality "Cherokee" is derived from "Tsalagi" which may or may not have been used by the Cherokees themselves -- Boudinot claims that it was a place name of minor importance, not properly a tribal designation. Mooney's article in the American Handbook observes that the people also called themselves "Ani-Kituhwagi" meaning "People of Kituhwa", which he describes as "one of their most important ancient settlements". Mooney also points out that the Delawares and other tribes called them "Kittuwa". At the very least, then, the term "Keetoowah" was originally the name of a Cherokee town, perhaps the most important of the ancient towns; and in its broadest implication it may be that the term is a more appropriate cognomen for the entire people. Taking it at its least implication, Keetoowah is, historically at least, on a par with the Creek towns in that it was originally an independent unit of government. Hence the Solicitor is wrong in saying that Keetoowah was not historically a governing unit. Next it remains to explore whether the original significance of Keetoowah, as being somehow associated with the heart and the center of the Cherokee people, went with the people when they were expelled from the original homeland. The Solicitor assumes that the contrary was true: that the term was only resurrected in the stressful days before the Civil War when the Cherokee people found themselves split on the slavery issue, and that it was again invoked when the fact of tribal dissolution approached. As I point out above, the Solicitor characterizes it as a secret society. The question deserves more research than it has had up to now. Emmett Starr in the "History of the Cherokee Indians" (quoted by Wisdom), presents facts which indicate that Keetoowah was a living thing and that it went with the people. Writing about Red Bird Smith, who was the moving spirit in the founding of the Night Hawk Branch of the Keetoowah organization, Starr points out that Red Bird was born near Fort Smith, Arkansas, in 1859, while his parents were enroute to Indian Territory, and that his father, Pig Red Bird (the name Smith was added by white people), was an ardent adherent of the ancient rituals and customs, which he taught to his son. Red Bird then went on to become one of the Chief expounders of the religious beliefs and moral codes of the old life. When the Keetoowahs drafted their constitution in 1858, they did so not as a private and exclusive society, one feels, but as a group of trustees might organize in order to keep intact the property and the spiritual estate of the people facing peril. Previously, there had been no occasion for such formal organization because Cherokee laws and customs had continued to function. By 1858 many non-citizens had come into the Nation, factionalism became strong, and it was necessary to adopt measures in self-protection. The Keetoowahs even adopted a flag in the heat of the Civil War, around which they rallied support for the cause of the North. In February 1863 they abolished slavery unconditionally and forever (Mooney). In all of this that acts as a nation, certainly, not as a private, voluntary association. The record, incomplete as it is, seems clearly to indicate that the Keetoowah group, whether we call it a society, a faction, or a band, did exercise independent political action, even to the point of initiating hostile proceedings. It has been a formally organized body at least since 1858, with representative districts, and for many years it had a common leadership. The fact that the original body split into factions ought not to persuade our judgment as to the true nature of Keetoowah. At present there is in evidence a real desire on the part of all factions to reunite in a common organization. In considering the status of the Keetoowah association, one ought not to lose sight of the total history affecting the Cherokee Indians. As I pointed out earlier, the United States government insisted on treating with the Cherokee Nation when there was no such entity, and more than there ever was a Creek Nation. The pressures exerted by the United States Government resulted in producing numerous counterpressures within the Cherokee society. Those elements within the tribe who were compliant and willing to concede the demands made by the Untied States in time were recognized as comprising the corpus of the tribe; those who resisted were treated as a malcontent minority. At a most critical juncture in Cherokee history, on January 31, 1899, a general election was held for the purpose of accepting the Dawes Commission terms. The Keetoowahs, that is to say, the Indian element off the Cherokee Tribe, refused to participate and as a result their interests were defeated by 2015 votes. The membership of the group was more than sufficient to carry the election if they had mustered their full strength. From this indication we gather that at that time the Keetoowahs actually represented a majority within the tribe. The Keetoowahs themselves have never accepted the view that they are not "the people' and that they do not speak for the real interests of the ancient Cherokee world. They continue to this day to speak and act in all patience as if the decrees of the courts and the acts of the Congress had never been. But they are still puzzled at the failure of the United States to understand the simple thing they have always said, namely that Keetoowah is Cherokee and should never have been considered anything else. I propose that we bring this matter again to the attention of the Solicitor and try to get a revision of the 1937 opinion. (Position Paper on the UKB, 24 April 1944, D'Arcy McNickle) In light of this memo, it is clear that the 1946 Act that followed was not a Federal acknowledgment bill at all. As history shows, the Secretary simply abandoned the Solicitor's Opinion and promoted status clarification legislation. Congress even accepted without question Ross O. Swimmer's bizarre story that Congress recognized the UKB in order to accomodate Principal Chief W. W. Keeler in some way, although Keeler's appointment to the Executive Committee of Cherokee Nation came two years after the passage of the 1946 Act. Keeler was not Principal Chief of Cherokee Nation until several months later, when the UKB reorganization process was virtually complete. Disregarding all legislative precedent and the 100th Congress's repudiation of termination, Congress passed Amendment 86 to the FY 1992 Interior Budget, agreeing to delete funding for the United Keetoowah Band of Cherokee Indians in Oklahoma, providing further in the legislative history that until such time as Congress enacts contrary legislation, Federal funds should not be provided to any group other than the Cherokee Nation within the jurisdictional area of the Cherokee Nation. Unless the UKB is able to move entirely out of Oklahoma, the result was this technically deficient language, which nonetheless represents the express legislative termination for the purposes of eiligibility of the first tribe since 1962: . . . until such time as legislation is enacted to the contrary, none of the funds appropriated in this or any other Act for the benefit of Indians residing within the jurisdictional service area of the Cherokee Nation of Oklahoma shall be expended by other than the Cherokee Nation, nor shall any funds be used to take land into trust within the boundaries of the original Cherokee territory in Oklahoma without the consent of the Cherokee Nation. As Acting Assistant Secretary, Ron Eden issued a determination on 24 August 1992 that the UKB is entirely separate and autonomous from CNO, and is recognized as a properly organized OIWA and IRA tribal government that neither has been terminated nor barred from the Federal-Indian relationship. Meanwhile, the nebulous status of CNO continues to receive blanket endorsements from the BIA and summary approvals of Congress. With the approval of the Secretary, the Councils of CNO and the Eastern Band of Cherokee Indians of North Carolina adopted a concurring resolution without notice to the UKB in August 1992 that they are the sole federally-recognized Cherokee tribes. Principal Chief Mankiller announced in January 1993 to all U. S. governors that the UKB is an unrecognized Indian group. While claiming that she has made the resolution of differences with the UKB a personal and political priority, Mankiller has campaigned for the express legislative termination of the UKB. CNO has signed a new self-governance program to take effect in October 1993, and enjoys piecemeal restoration of the inherent sovereignty of Cherokee Nation under the 1906 Act, based largely on the misconception that the CNO is organized as a democratic OIWA and IRA government. In a Letter, 7 July 1993, from John Ross, Chief Spokesman, to Rosella C. Garbow, Director, Training and Operations, BIA, Muscogee Area, asking for clarification on the following points: 1. Has the Cherokee Nation of Oklahoma ever proposed having an O. I. W. A. election to adopt a Charter? 2. Does CNO claim to have a Charter? 3. Does CNO claim to have a "blanket" concurring resolution from the UKB for CNO use of the UKB Charter? Rosella C. Garbow initialed the memo and advised that the answer to all three questions was, "No." There will be no level playing field between the CNO and the UKB, as long as Congress and the BIA authorize CNO's continuing attack on the UKB's sovereign interests. If the fate of the UKB serves as precedent, no other small recognized tribe is safe. This concludes the UKB's formal response to CNO's 1991 demand that the UKB submit to the Federal acknowledgment process to regain its status as a federally-recognized Tribe. The UKB cannot submit to the acknowledgment process, because according to Mr. Peter Taylor, formerly of the Senate Committee on Indian Affairs staff, the UKB is de-facto terminated, or forbidden to participate in the Federal-Indian relationship, at least within the original territory described in the 1950 UKB Charter. While refusing to serve the UKB or put lands in trust, or even to finance an IRA election to amend the UKB Constitution due to the effect of Amendment 86 in P. L. 101-116, the BIA claims that the UKB is non-terminated; and since the UKB still is listed as federally- acknowledged, the UKB cannot petition for acknowledgment because the Band is recognized. However, the Band is ineligible for ANA funds to document a Federal acknowledgment petition because ANA/IHS presumes the UKB is terminated and barred from recognition. CNO declares now that the UKB does not exist, and that it never did, so that the UKB never was recognized, and never was terminated. Therefore, the legislative termination of the UKB is the termination that never was, and represents the weirdest paradox at Federal-Indian law: unrecognized/recognized, non-terminated/terminated. A quantum physicist couldn't make sense of this quadruple negative. But any school child can see there's a naked emperor in there somewhere. Congress, tribes, and the American people can learn important lessons from the protracted travail of the UKB. The UKB is a congressionally recognized tribe, while CNO is an administratively condoned, legislatively diminished tribe unorganized within the meaning of OIWA and IRA. In the interests of fair play, future claims of those attacking tribal sovereignty should receive far more scrutiny. Claims that a particular tribe's sovereignty can still be suspect after it has reorganized should be the subject of thorough investigation. The reader may be sure that the UKB will pursue exactly such an investigation in this case. The United Keetoowah Band of Cherokee Indians in Oklahoma offers the following documented briefing as the Band's only available recourse in view of Cherokee Nation of Oklahoma's campaign of political libel. Supporting documents are at the UKB Office, at 2450 S. Muskogee Ave.(P. O. Box 746), Tahlequah, OK 74464 (918) 456-5491. THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA AS A MODERN AUTONOMOUS TRIBAL ENTITY This narrative reviews the historical events and associated archival documents pertaining to UKB reorganization, with emphasis on the period from 22 March 1934, to 3 October 1950. A brief historical overview of the Keetoowah Indians is appropriate here. This preliminary section draws heavily from Charles Wisdom's ethnography, The Keetoowah Society of the Oklahoma Cherokees.(14: I, in *: IV; hereafter, 14: I) Oklahoma's Senator Elmer Thomas blocked the application of the Indian Reorganization Act to Oklahoma Indians based on his thinking that the IRA only should apply to reservation Indians. He and Representative Will Rogers sponsored the Oklahoma Indian Welfare Act, allowing allotted Indians in Oklahoma to have many of the same benefits.(Francis Paul Prucha, The United States Government and the American Indians, Lincoln: University of Nebraska Press, 1984, Abridged Ed., p. 327; Leeds 1992: 21) Ben Dwight, Organization Field Agent for the Five Civilized Tribes Agency, and the anthropologist Dr. Charles Wisdom, employed also with the BIA, met with the Keetoowah Society, Inc., on 5 May 1937, in order to determine whether the group could be organized as a tribe. Wisdom remained in the area, contacting the range of Keetoowah groups.(Leeds 1992: 22; Leeds and others have confused the Nighthawks with the Keetoowah Society, Inc., in assuming that Wisdom's primary contacts were with the Redbird Smith faction, instead of with the Corporation) Although the Wisdom study had an important role in UKB organization from the date of its submission to the BIA, it is dangerous to assume that the report was objective or necessarily accurate. Wisdom signed off as "Collaborator" rather than "author." Indeed, considering the extent to which Wisdom obviously relied on Vice-Chief Levi Gritts of the Keetoowah Society, Inc., as a source, one must view the entire document with a critical eye, concluding that Wisdom was little more than a "compiler" of the observations of Levi Gritts. Wisdom no doubt wrote his report in haste, easily falling into the error of quoting Gritts verbatim without question and with little comment, even when Gritts openly berated his own competitors for Keetoowah leadership. Wisdom contributed few comments or original observations of any substantive value. The Wisdom report seems to be little more than a compendium of scholarly quotations and the thoughts of Levi Gritts. However, the narrative remains an important basic source. James Mooney observed in his seminal report, "The Myths of the Cherokee,"(11: I) that the name "Keetoowah" derives from "Kitu'wa," the name of an extremely influential, ancient historical sacred town of refuge called Keetoowah once thrived in North Carolina, "on Tuckasegee River, just above the present Bryson City, in Swain County, North Carolina: It is noted in 1730 as one of the "seven mother towns" of the tribe. Its inhabitants were called Ani'Kitu'hwa'gi (People of Kituhwa), and it seems to have exercised a controlling influence over those of all the towns on the waters of Tuckasegee and the upper part of Little Tennessee, the whole body being frequently classed together as Ani'Kitu'wha'gi. The dialect of these towns held a middle place linguistically between those spoke on the east, on the head of Savannah, and to the west, on Hiwassee, Cheowah, and the lower course of Little Tennessee. In various forms the word was adapted by the Delawares, Shawano, and other Northern Algonquian tribes as a synonym for Cherokee, probably from the fact that the Kituhwa people guarded the Cherokee northern frontier. In the form Cuttawa it appears on the French map of Bougondy in 1775. From a similarity of spelling, Schoolcraft incorrectly makes it a synonym for Catawba, while Brinton incorrectly asserts that it is an Algonquian term, fancifully rendered, "inhabitants of the great wilderness." Among the western Cherokee it is now the name of a powerful secret society, which had is origin shortly before the War of the Rebellion.(14: I) The Keetoowah people represented a "Mother Town" of the whole Cherokee Tribe or culture, resembling in character the Talwas, the Tribal Towns of the Creeks.(84: I) The Mother Town of Kituhwa was northwest of Hopewell, site of the Treaty of Hopewell (28 November, 1785, 7 Stat. 18). The Kituhwa towns constituted a significant number of the signers of that treaty. The treaty recognized the "respective tribes and towns" of "all the Cherokees" as autonomous entities. They remained faithful to their treaties through Removal and the Treaty of 1866.(142: II) Traditional Keetoowah government differentiated little, if any, among governmental, legal, or religious actions. The late efforts of Cherokee Nation of Oklahoma to brand the UKB as simply a religious cult, voluntary club, or secret society evade the truth regarding the continuity of the governmental body of the Keetoowahs. After the creation of a Cherokee Nation Constitution, the Keetoowah Band still was a loosely identifiable population, linguistically and culturally Cherokee, whose ancestors had called themselves Keetoowahs before the creation of the earliest Cherokee Nation constitution. Before 1820, the Cherokee people were a loose confederation of villages centered on several major towns, to which the others were subordinate. Clan affiliations, the Red (War)/White (Peace) government distinction, and other factors were important organizing features of the society, more so than any "national" sense. These factors also tended to cultivate a strong, even jealous sense of local autonomy and repellant inter-town rivalry, which not infrequently resulted in angry feuds and truly homicidal stick-ball games. Wisdom found that: the Keetoowahs were in ancient times the most conservative element of the Cherokee Tribe, being one of the seven "mother towns" with a chief fire and a number of subsidiary fires belonging to it, and that a short time before the Civil War the name was adopted by the conservative element of the Oklahoma Cherokee who organized themselves on the basis of the native culture and traditions in an attempt to arrest the process of amalgamation with the social, political, economic, and religious organization of the Whites, which had gone on rapidly since the Removal from the east. Thus, the Keetoowahs originated primarily to present a united front against the "innovating tendencies of the mixed-bloods" and against the encroachment of the Federal Government and the Whites in general, and secondarily over issues involved in Civil War politics.(14: I) Keetoowah Indians do not constitute an identified group, society, town, or division, either among the Eastern Band of Cherokee Indians of North Carolina, or among some forty other easteren groups claiming Cherokee descent today. The Eastern Band of Cherokees of North Carolina show little interest in reclaiming the site of the old Keetoowah town near Bryson City in Swain County. An Obituary of John L. Springston, a Cherokee politician, appeared in the Tulsa Tribune of 28 December 1928, which recalled: Back in Georgia from where the Cherokees originally migrated to the Indian Territory in 1838 and 1839, the old Keetoowah group was dying out as early as 1835. When the majority of the Cherokees were brought west by General Winfield Scott, there was a great deal of unrest and antagonism between the fullbloods and half-breeds, which was only suppressed to a degree by the capable leadership of Chief Ross. From 1840 until a few years preceding the Civil War, the friction was minimized, but along about [29 April] 1859 there was a general upheaval and efforts at reorganization of the Keetoowahs were made. Under the direction of White Catcher, a fullblood Cherokee, who was captain of Springston's company during the war, and assembly was called on the banks of the Illinois River in September, 1858, to bring about a reorganization of the old group. After considerable ceremonial and shaking of hands, the Indians decided that they were as one, and Keetoowah was a reality once more.(14: I) The Keetoowah people in Oklahoma claimed descent from the culturally conservative, mostly fullblood Cherokee element in the Old Cherokee Nation after 1833. Clearly, the Western/Old Settlers saw themselves as a nation distinct from the Eastern Cherokee (not to be confused with today's Eastern Band); the "union" of the conservative, predominantly full-blooded, Keetoowah Old Settlers faction with the Eastern faction was forced and largely non-consensual.(11: I, and 68: I) Also, many, though not all of the Keetoowahs who removed to Arkansas and Oklahoma, were born in, or lived in North Carolina before the Removal. Wisdom found that "a strong cultural and mystical relation certainly exists between" the ancient Keetoowah band of the Carolinas and the Keetoowahs of Oklahoma, "and in three ways": First, the modern Keetoowahs consider themselves, and are, the cultural descendants of the ancient Keetoowah band, and they feel themselves to be the only Cherokees left who are making any attempt to preserve the ancient Cherokee culture. Second, both groups represent the most conservative elements among the Cherokees, and have consistently opposed all the attempts on the part of outsiders, whether White or Indian, to break down their aboriginal cultural patterns. Third, the modern Keetoowahs feel that a strong mystical relationship exists between themselves and their ancient prototypes, and all the rest of the natural and supernatural world in general. This is especially shown in their constantly reiterated statements to the effect that "Keedoowah" is a phenomenon that has existed almost since the beginning of time and will exist forever, and that the name refers to something more than a mere collection of homogeneous individuals.(14: I) In 1845, in the face of conflicts among the Eastern Ridge Party, Eastern Ross Party, and Western Old Settlers, President Polk urged division of Cherokee lands and the formation of two governments. Howard Q. Tyner's The Keetoowah Society in Cherokee History is an important source the Civil War history of the Keetoowahs.(19: I) The efforts of the Keetoowahs to keep the Cherokees in the Union failed when the Cherokee government aligned with the Confederacy on 7 October 1861; and in the aftermath, the Keetoowahs were penalized along with the rebels, losing treaty rights and dignity. Reluctant participants in the Treaty of 1866 (which nullified all previous U. S.-Cherokee treaties to the extent their terms were inconsistent with the 1866 Treaty), the Keetoowah representatives were forced into signing an insulting settlement, or walking away. James M. Bell, one of the "southern" delegates, said, "I think that the pin [Keetoowah] Cherokee themselves will kill their delegates for giving away their country." In their efforts to maintain traditional Cherokee cultural institutions and values, the Keetoowah people among the Cherokee Nation carried a Keetoowah culture distinct from generalized Cherokee Nation social and political life. The "fires," or ceremonial grounds, of the "Original Keetoowah Society," or "Nighthawks," were only three among the Keetoowah fires remaining by 1937. Many -- and probably, most -- Keetoowahs also have been practicing or nominal christians since 1858. An adopted Cherokee (a non-Indian Southern Baptist minister, John B. Jones, the son of the missionary Evan Jones) reportedly organized the Society among his parishioners in 1858, though Budd Gritts wrote the Keetoowah Society's constitution in 1858 and 29 April 1859, and revised it in 1860. Some realignments occurred among the main factions, but the Civil War and its aftermath reinforced many of the underlying philosophical ties, distinctions and divisions, and these remain largely intact today. Settlements separated the factions, with many of the Southern sympathizers moving into the Canadian District and certain other regions. Due to the influence of Evan and John Jones and their followers and friends, and a party made up mostly of southern Cherokees, mixed bloods, intermarried non-Indians and other "progressives," Louis Downing became Head Captain of the Keetoowahs, and a candidate for Principal Chief, and won the 1867 election. He then lost favor with many Keetoowahs, though he remained Head Captain of the Society (Tyner 19: I, pp. 56-59). Bud Gritts, Secretary of the Keetoowah Society, called for a reorganization on 14 February 1876, in Saline District, where he was elected Head Captain. The new constitution amendments affirmed Keetoowah loyalty to the U. S., to the Cherokee government, and to treaties with the U. S., and excluded or expelled "all who belonged to any other organization." The "Nighthawk" Keetoowah Society itself, like the Keetoowah Society, later banned its own members from participating in church life or in other Keetoowah fires on pain of banishment, though it continues to make unsubstantiated claims that the Keetoowah Society, Inc., and the UKB factions all were "Nighthawk" splinter groups. In 1879, the Keetoowahs joined the Old Ross Party, including the majority of Old Settlers, forming the "National Party," adhering to the old values. They elected Dennis Bushyhead as Cherokee Chief in 1879 and 1883. Bud Gritts died, leaving a gap in leadership when the 1887 election came. The Keetoowahs decided, after the National Party lost that year, to support Rabbit Bunch, who subsequently was elected and served the Society as Head Captain until statehood. Wisdom concluded that: Sometime after the Civil War, the Society broke up into a number of factions, dissension being caused over disagreement of faith and on the relationship maintained with the dominant whites and the Federal Government. Sometime before 1900 the whites in Eastern Oklahoma far outnumbered the Indians, and due to their constant insistence upon Statehood and their natural dislike for a "foreign" government, the native government of the Five Tribes were ceasing to function effectively. Also, by this time sufficient intermarriage between whites and Indians had gone on to produce an extremely large mixed-blood element. The latter clamored for social and political identification with the whites and with the Federal Government, and to this the full-bloods loudly objected. Thus, before the end of the century, great dissension existed between the Indians and the white settlers on the one hand, and between the full-bloods and the mixed-bloods on the other. The breaking up of the Keetoowah Society of full-bloods into opposing factions at this time may be considered a manifestation of this dissension. Six factions came into existence, each claiming to have its own program and purpose for organizing, and each headed by a leader of greater or less prestige.(14: I) In their 20 November 1894 Report, the Dawes Commission commented: The governments have fallen into the hands of a few able and energetic Indian citizens, nearly all mixed bloods and adopted whites, who have so administered their affairs and have enacted laws that they are enabled to appropriate to their own exclusive use almost the entire property of the Territory of any kind that can be rendered profitable and available.(95: III) In the case of Cherokee Nation, about 61 citizens had appropriated some 1,237,000 out of the whole 3,040,000 acres. The record of fraud and corruption in Cherokee Nation was so awful that termination of the government and division of the property seemed just. Tyner wrote (19: I, pp. 65-67) that the Keetoowahs offered a: "Plan for preserving in effect the continuity of the Tribal relations of the full-blooded Indian" [that] provided that as many full-bloods as desired might take adjacent allotments within an area subject to the approval of the Dawes Commission and hold it as a corporation for their joint use under communal title. Apparently the proposal was not even considered at the time by the Federal officials, but barely a generation passed until the whole machinery of Indian administration was set in motion to bring about this identical result, through the OIWA and IRA. The Keetoowah Society of 1858 became a progenitor of the various factions that arose among the Keetoowah Indians. The Keetoowah Society, Inc., was the direct successor to the Keetoowah Society, because the Keetoowah Society only adopted a corporate form in 1905 without materially altering its membership or purpose. In 1905, they realized that upon the dissolution of Cherokee Nation, they would be at the mercy of a Principal Chief serving at the pleasure of the President. Unless the Keetoowahs had an organized government based on their pre- constitutional mode of local government, there would be no entity to prosecute claims regarding the Cherokee treaties, no one to protect Cherokee interests, and no way of governing their internal relations. They believed such a recognized body could benefit all Cherokee people. Rabbit Bunch had served ably, but realized he was ill-equipped, lacking formal education, to carry on these duties, and he nominated an educated mixed-breed, Richard M. Wolfe, as Chief to succeed him (19: I, p. 85). Realizing that Federal legislation would support the development of incorporated governments for Indians, Wolfe sought to obtain legal recognition of the Keetoowah Society organization as a government for Keetoowah Cherokees, and petitioned for the only relief available -- corporate tribal status for the Keetoowah Council -- before U. S. Court for Indian Territory at Tahlequah on 20 September 1905. The United States Court for the Indian Territory Sitting at Tahlequah, in Special Term, recognized the group as the Keetoowah Society, Inc.: Whereas, RICHARD M. WOLFE, DAVE MUSKRAT, WOLF COON, DANIEL GRITTS, FRANK J. BOUDINOT, J. HENRY DICK, and others have filed in the office of the Clerk of the United States Court for the Northern District of the Indian Territory, at Tahlequah, their Constitution or Articles of Association in compliance with the provisions of the law with their petition for incorporation under the name or style of Keetoowah Society, Inc., they are, therefore, hereby declared a body politic Corporate by the name and style aforesaid with all the powers, privileges and immunities granted in law thereunto pertaining."(19: I; Certificate of Incorporation, Keetoowah Society, in Ex Parte Keetoowah Society, C. No. 592, 20 September 1905) Webster's Third New International Dictionary (1961) defines "body politic" as "the whole people organized and united under a single political authority: a politically organized society: State." The Keetoowah Society, Inc., then, was an organized body representing the Cherokee people for certain purposes in the eyes of the Federal government, in 1905. From 1903 to 1917, W. C. Rogers had the appointment of Principal Chief of the Cherokee Nation or Tribe, over the protests of Keetoowahs. In 1905, the Keetoowah factions proposed a national election, but Chief Rogers held that such an election was a pointless waste of money. The National Council held an election anyway, and elected Frank J. Boudinot (an attorney, and member of the Keetoowah Society, Inc.) as Principal Chief. Secretary of the Interior Ethan A. Hitchcock refused to recognize Boudinot, so Rogers continued as appointed Principal Chief until his death in 1917.(19: I, p. 88) The finalized Dawes Roll of 1907 included only 8,703 full-bloods. Many had abstained or been absent during registrations. Others had been disqualified due to various technical reasons. This was primarily a Federal roll of 41,824 persons, including 27, 916 mixed-breeds, the majority of whom were under 1/4 Indian blood, 286 whites and 4,919 freedmen.(32: I, p. 244) After statehood, the Keetoowah Society, Inc., safeguarded the welfare of Cherokees. They held an annual session running for the duration of business to transact. They hired attorneys to protect individual interests of Cherokees, and opposed granting freedmen the right to participate in the division of Cherokee lands, and prevented the payment of $500,000 to freedmen from the sale of the Cherokee Strip. In 1920, four factions of the Keetoowahs claiming to represent the Cherokee people (the Keetoowah Society, Inc., the "Nighthawks," the Cherokee Executive Committee and the Eastern and the Western Cherokee Council), met at Tahlequah in a convention of Cherokees by blood to obtain a popular election of a Cherokee Chief, namely Levi Gritts, to replace the presidentially-appointed Chief and obtain a jurisdictional bill from Congress that would allow them to file in the Court of Claims against the U. S. government.(19:I, p. 81) The four groups elected a Cherokee "Executive Council" which lasted for several years, but which never obtained Federal acknowledgment as the representative government of the Cherokee people.(19:I p. 89) In 1928, Levi Gritts succeeded one of the Head Captains of the Keetoowah Society, Inc., and he began to work to strengthen the society by making trips to Washington, D. C. to obtain legislation beneficial to the Cherokee people. He strongly advocated the Indian Reorganization Act of 1934, but due primarily to the intervention of Senator Elmer Thomas, Oklahoma tribes were omitted from participation in the IRA until OIWA passed in 1936. In 1937, the Keetoowah Society, Inc., claimed a membership of about 7,000, including 4,500 full-bloods and 2,000 mixed bloods, and 500 intermarried, but they had had no enrollment update in years. In his report, Wisdom quoted verbatim the official statement of the Keetoowah Society, Inc., through their First Vice-President, Levi Gritts of Muskogee: The purpose of the organization was to protect their Cherokee people, their lands and their form of government. . . . When the Curtis Act was passed by Congress, the Keetoowah Society realized that there would be a lot of unsettled Cherokee business and their Cherokee Nation would be abolished. So they drafted a new constitution and copied part of the old constitution, and secured a charter from the United States Court. Their purpose was for this to take the place of the Cherokee Nation to protect their unsettled claims against the U. S. Government as well as determine who had the rights to the Cherokee lands, money and other Cherokee governmental property. The opposite Cherokee political party had proposed in their platform that the rights of Cherokee lands, money and other property would be distributed among all citizens of the Cherokee Nation. . . . The Keetoowahs protested their rights as being equal to Cherokees by blood except those who had been enrolled at an earlier time of the Cherokee Nation. . . . During the time of the Cherokee Nation it was politically organized, but after the abolishment of the Cherokee Nation it became non- political and they do not allow politics to enter into their Society. [Note: Wisdom contradicts himself repeatedly on this point.] They belong mostly in protestant churches. The Keetoowah officers consisted of a President, Vice-President, Second Vice- President, Treasurer, Secretary, Head Captains in each of the nine districts, council from each district, twenty-seven in all. Each local Keetoowah had an organization and were loyal to one another; they assisted one another in case of sickness and in looking after one another's homes. During the time of the Cherokee Nation it was politically organized, but after the abolishment of the Cherokee Nation it became non-political and they do not allow politics to enter into their Society. They belong mostly in protestant churches. As a whole, the membership consists of full-blood Cherokees and mixed-blood Cherokees.(14: I) Wisdom reached the following conclusions: The council is composed of twenty-seven members, three being elected from each of the nine districts of the former Cherokee Nation. Meetings are held every two or three years in Muskogee, or nearby towns, but these are attended by very few of the members, as the organization seems to have lost any importance it may have once had.(14: I) Muskogee, incidentally, lies within the boundaries of the old Creek Nation. The officers of the Keetoowah Society, Inc., in 1937 were: Gabriel Taripen, President, Stillwell, Oklahoma Levi B. Gritts, First Vice-President/ Acting Secretary, Tahlequah, Oklahoma James Cochran, Second Vice-President, Hulbert, Oklahoma James W. Duncan, Sec.-Treas., Tahlequah, Oklahoma Alex Johnston, Chairman of the Council, Tahlequah, Oklahoma. In 1948, Jackson Thomas Wolfe was Chairman, C. H. Rogers was Secretary, Tilden Cramp was Second Vice-President and Dwight H. Thornton was Treasurer. The Board of Trustees consisted of William Meeks, Dewitt Duncan, White Tobacco Sam (one of the leaders of the Medicine Society faction), Daniel Squirrell and Timothy Rattler. Various "Keetoowah societies" have existed among the Keetoowah people, claiming a right to leadership. Wisdom reported: There seems to be no objection on the part of either the leaders or the members to affiliation with other Indians in any kind of organization the federal government may wish to set up. It is felt that a count credit association, for example, would not interfere with the functioning of the Keetoowah organization itself, so that there will be not active opposition to the acceptance of government credit.(14: I) The Keetoowah Society, Inc., felt little need to avail themselves of reorganization, unless their organization dominated. For their part, Keetoowah Society, Inc., fell moribund after 1937, as members simply merged with the UKB, or in the 1970s, with Cherokee Nation of Oklahoma. Indications of the breach between the Keetoowah Society, Inc., and the UKB, and the eventual dissolution of the Keetoowah Society, Inc., appear in a variety of sources. For example, during the organization process, W. O. Roberts found that: Levi Gritts has separated himself and a group of followers from the main organization and . . . there is considerable opposition emanating from the Gritts' organization against the group dominated by Rev. Pickup, Mr. Sixkiller and others.(66: IV) In 1949, during the final preparations for the UKB election to adopt the Charter, Constitution and By-laws, most "hold-out" members of the Keetoowah Society, Inc., merged with the UKB, and by the time the organic documents were approved, the Keetoowah Society, Inc., was essentially defunct. Anna Gritts Kilpatrick, the daughter of Levi Gritts, later became a Secretary of the Band. While confusion reigned about the relationship between the Keetoowah Society, Inc., and the UKB, Wisdom did not neglect to review the conditions of the Original Keetoowah Society, concentrated at Gore, in the western tip of Sequoyah County. The Original Keetoowah Society was not "original" in any sense. Even John Smith's "revelation" as to the origin of the Keetoowahs came at least two years after the organization broke from the Keetoowah Society. The leaders (primarily Redbird Smith, his sons and in-laws) claimed to carry the only authentic religious inheritance of the Cherokee people as one of their central tenets. The leaders' claims rested on their ability to validate their claims to wisdom and spiritual gifts. Followers began to question both the leaders' wisdom and spirituality before 1912. This body, according to Wisdom, had the most complex internal organization at one time, due to the creation of an elaborate religious complex at their religious grounds around the turn of the century, though the decline was precipitous between 1918 and 1937. These are the "Nighthawk" Keetoowahs, so named due to their tendency to hold night gatherings, to send messengers by night, or the like. Wisdom wrote: Their membership at one time ranged between 3,000 and 5,000 but due to depression and scattering of families only about 900 now take active part as members. A roll is made up by the Society each year, and at present contains 887 signatures. They are almost entirely full-bloods, with perhaps thirty to fifty mixed-bloods. They live in Sequoyah, Cherokee, Adair, Delaware, Mayes and Muskogee Counties, with the greatest proportion in western Sequoyah County. They are almost entirely of rural habitat. The original leader of this faction was Redbird Smith, and his two sons are today Principal Chief and Assistant Chief of the Society.(14: I) A month after Kirgis issued his Opinion, the Original Keetoowah Society protested the inaccuracy of the Wisdom report as to them in a letter to the Commissioner, and Wisdom's failure to clear the report, as promised, with the Nighthawk Council before submitting it.(*: IV) Chief Sam Smith of the Nighthawks was a son of Redbird Smith. When given the opportunity to participate in talks to bring about a coalition government for the purposes of reorganizing the UKB under OIWA and IRA, Smith notified Organization Agent A. A. Exendine that the Nighthawks never would participate in such a meeting. Exendine assured Smith that even thoguh the Keetoowah groups would come together under one banner, each entity would retain its local autonomy and administer government benefits or funds to its own members.[Memorandum, 13 June 1939, Ben Dwight, Organizational Field Agent for the Indian Service, to Regional Coordinator for Organization A. C. Monahan Re: Keetoowah Organization, summarizing the Division's activities with regard to the UKB (Fort Worth NARA).] Thus ended the opportunity of the Nighthawks to enroll as a group in the UKB. Thus died all legitimate claims of the Nighthawks that they were uninformed about the reorganization of the UKB and its implications. The UKB never identified itself with Nighthawk interests after this event, though the Stokes Smith Nighthawks claim otherwise. This probably is because in 1955, the faction of Nighthawks at Redbird Smith's original grounds joined the UKB en masse!(Leeds 1992:58) Wisdom remarked that, after the Keetoowah Constitution in 1859, things went well for about thirty years: During the period from 1859 to 1889, the Keetoowahs flourished and were strongly united. Almost without exception the Keetoowahs went with the north in the Civil War. In all this period the Keetoowahs were either Baptists, Methodists, Presbyterians, a few Quakers, and a part of the worshipped according to the rituals of the ancient Keetoowah, but all got along harmoniously. Dissension came only after the white missionaries objected to and condemned what they termed "the pagan form of worship" of the ancient Keetoowahs, and designated them as "the work of the Devil."(14: I) The Keetoowah Constitution was amended in 1889, "making it rather a political organization in character;" and: From this period the difference between the Christian Keetoowahs and the ancient Keetoowahs became more marked, and there was a lack of harmony even in their policies of political effort. In 1895 when the question of the allotment of lands to the members of the Five Civilized Tribes was being agitated, the ancient Keetoowahs became very active in opposing the proposed change. In this, however, all the Keetoowah elements were united in their opposition to any speedy change. From this time to 1900 the following of Redbird Smith were designated universally as the "Nighthawk Keetoowahs" because of their vigilance in their activities. On January 31, 1899, a general election was held for the purpose of determining on what is known as the Dawes Commission Treaty. The full-bloods lost by two thousand fifteen votes. The Keetoowahs were united in their opposition to the allotment of lands and dissolution of their Government, but a part of them saw that the change was inevitably coming and adjusted themselves accordingly.(14: I) The Keetoowah Society element that accepted that "change was inevitably coming" became the Keetoowah Society, Inc. According to Levi Gritts, Redbird Smith and the "Nighthawks" withdrew from the Keetoowah Society, long before the latter obtained its charter from the United States Court on 20 September, 1905. After a meeting of the Society (at Big Tucker Springs in Tahlequah District in Wisdom, at Moody's Spring in Tahlequah District, according to Tyner, 19: I, p. 68) on 6 September 1901, regarding proposed changes in their government, the Keetoowah leadership decided that the people should enroll--although under strong protest, filing opposition statements with their allotment papers--and that they should cooperate with government representatives, in order to have a stronger bargaining position in getting a legislative solution. Redbird refused to participate in the voting, and withdrew with eleven clan brothers without notice to the Society. Therefore, Redbird Smith formed his own organization, thus creating the first major splinter group from the Keetoowah Society.(14: I) Redbird Smith led 5789 Nighthawks in opposing the entire allotment and termination scheme, with their headquarters near the Illinois River northeast of the present town of Gore. Redbird persuaded many not to participate in the Dawes Commission's proceedings at all. In 1908, Redbird Smith was elected Chief of the Nighthawks, whereas he formerly had been "Chairman." In 1910, Redbird gave up: Redbird Smith claimed he was the original Keetoowah, so finally his followers became accustomed to being called Nighthawks and now they are known by that name. Redbird Smith was chief and his orders were law. He made a number of trips to Washington, D. C. His members would make up his expenses for the trips. They would claim that they were going to get their Cherokee government back and generally set a time when it would be decided in their favor. They claimed one must join their Society to receive one's rights. One could not join their Society unless one was a Cherokee by blood and would withdraw his membership in the church and worship around the fire according to their belief.(14: I) While viewing themselves as the only authentic keepers of Keetoowah culture and the guardians of the Keetoowah people, Redbird Smith and his heirs repeatedly failed to foresee, detect, or prevent the exploitation of the Tribe. By 1910, a Federal program of harassment, arrest and imprisonment caused the apparent acquiescence of such Keetoowah Society leaders as Redbird Smith to the work of the Dawes Commission, including the allotment in severalty of Cherokee Reservation. Redbird decided he had erred, and advised the election of a Cherokee Chief.(Levi Gritts, in 14: I) Levi Gritts also recalled: Before his death he contacted C[hester]. P[olk]. Cornelius, Oneida Indian, in Washington, D. C. and induced Cornelius to become a legal adviser for this group. . . . They succeeded in having the their restrictions removed from their lands, then they pooled their lands and made mortgages. They bought cattle for their Society and also a bank at Gore, Oklahoma. What investments they made became the common property of their Society. The bank failed and their other property disappeared. Cornelius had swindled Smith, his family, and scores of his followers with schemes that clouded the "Nighthawks'" minds and emptied their pockets.(Redbird Smith died on 8 November 1918) The role Chester Polk Cornelius finally played in the decline of the "Nighthawks" and the formation of various late Keetoowah factions was staggering. This was the same self-made "community organizer," "religious and ceremonial authority," and economic development "expert" who allegedly swindled the Sac and Fox and others in the same era. Cornelius and his sister, Laura, even testified before congressional committees on economic development and self-determination. According to the late Archie Sam, a UKB member, leader of the Medicine Springs grounds, and descendant of the Medicine Society leaders, Cornelius was a reprobate from the beginning, whose baleful influence on one of the primary religious authorities, John Smith (Redbird's son), led the leaders of various fires to break away, including the Medicine Society, one of the Keetoowah factions. After Cornelius ran off with their money, the "Nighthawks" combed the Ozarks with shotguns for months trying to track him down. John Smith's reputation suffered greatly in the aftermath. When White Tobacco Sam and John Smith decided in 1912 to investigate the possibility of bringing the very promising peyote ceremonies down from the Quapaws in an attempt to revitalize the Keetoowahs grounds, John Smith made the mistake of bringing the only persons who would still listen to him, mostly whites from Tulsa. Sam abandoned the plan in disgust along with the concrete star and half-moon circle Smith had laid down (in concrete) out in the Sequoyah County woods. Archie Sam explained that this incident was an important factor in keeping Cherokees away from peyote (Slagle; interview, 1981) Levi Gritts also attributed the schism between members of the Seven Clans Society and the Nighthawks to the Smith family's venality and mendacity: The Pumpkin fire crowd have charged [the "Nighthawk" leaders with] mismanagement of the common property and that a few are in control, the ["Nighthawk"] medicine men not representing all of the clans.(14: I) Thus, one finds that profound disillusionment had separated the "Nighthawks" and their members from other Keetoowahs by the late 1930s, although the "Nighthawks" recognized the Keetoowah Society, Inc., for a time, after 1905, for the purposes of finding an attorney and representative in Washington, D. C. (Frank Boudinot and Levi Gritts). The only real success of the Keetoowahs "proper" during the Dawes Commission years was that Dave Muskrat, Head Captain of the Keetoowah Society, Inc., was able to work in a provision protecting the lands of fullbloods, by restricting them. However, by 1937, the "Nighthawks" had retreated again, and apparently wanted a separate OIWA charter of their own: The original Keetoowah group are heartedly opposed to affiliation with any Indians except their own members, and they are the only Keetoowah faction so opposed [as of 1937; the Four Mothers Nation and Seven Clans Society later demanded separate recognition]. It seems certain that they will have nothing to do with the county credit associations or with eventual tribal organization. In fact, one of the major causes for expulsion from membership is that of entering into any kind of cooperation with outside Whites or Indians. This objection may be tempered later on, but it is certainly strong at the present time.(14: I) This policy remains strong, though affiliation of "Nighthawks" with Cherokee Nation of Oklahoma seems to be the rule, and "Nighthawk" spiritual leaders advertise and market their services to Cherokee Nation of Oklahoma. The "Nighthawk" officers in 1937 were: Principal Chief Sam Redbird Smith, Bird Clan, representing Bird Clan John Redbird Smith, Assistant Chief, Bird Clan, representing Deer Clan William Rogers, Vice-Chief, Turtle Clan, representing Savannah Clan Dave Bush, Vice-Chief, Bear Clan, representing Bear Clan John Johnson, Vice-Chief, Bird Clan, representing Cat Clan Tom Smith, Vice-Chief, Bird Clan, representing Turtle Clan Martin Lincoln, Vice Chief, Wolf Clan, representing Wolf Clan. There was a chief "Nighthawk" fire at the main town, Buffalo, and two subsidiary fires, also known as the Stokes Smith fire, the Redbird Smith original fire, and the Goingsnake, or Seven Clans, fire remained. There had been twenty-one subsidiary towns and fires in the early 1900s, all united in fealty to the central town and fire of Buffalo, but factionalism and abandonment of the "Nighthawk" cause led members away to other Keetoowah fires or factions, or simply away. According to recent observers of the great holidays at the Stokes Smith Stomp Dance Grounds at Vian, Oklahoma, attendance has been as high as 600 at some events over the last ten years, and as low as 200; and there is no way of knowing how many in attendance are members, due to the secrecy of the organization. It is very unlikely that the membership of the Original Keetoowah Society approaches its earlier numbers. Today, a mere handful of enrolled UKB members may belong to the "Nighthawk" Keetoowah Society. In response to recent litigation between the UKB and the United States, it seems the Original Keetoowah Society, specifically the faction at the Stokes Smiths' Grounds Branch (which, to be historically accurate, certainly was not the "original" Keetoowah Society in a chronological or successional sense), also called the "Nighthawk Keetoowahs" (currently under the leadership of Chief William Smith, a descendant of Redbird Smith), have claimed that the UKB is a splinter group of their version of the Keetoowah Society. The "Nighthawks" fail to acknowledge, as they did in 1946, the rights or existence of all other contemporary Keetoowah organizations, including the Keetoowah Society, Inc. Indeed, Redbird Smith's point in breaking away with his circle of followers from the Keetoowah Society in the 1890s to form the "Nighthawk" group was to avoid contact or association with Keetoowahs, other Cherokees, and other leaders who might disagree with his opinions, or challenge his personal authority. The Keetoowah Society and the Keetoowah Society, Inc., as well as most Keetoowah factions, were political organizations with concerns for the preservation of positive aspects of Keetoowah culture, including the language. The "Nighthawk" Keetoowah Society was a religious cult from its inception. The "Nighthawks'" reputation for, among other things, incorporating such ritual elements as periodic sacrifice of live animals in their sacred fire alienated many Keetoowahs, and still does. Since 1910, the "Nighthawk" Keetoowah Society claimed to remain politically uninvolved as a matter of doctrine: All the factions, except the Nighthawks, are definitely political in character. The latter may be called primarily religious and cultural, and have been very little involved in political activity or pressure since Redbird Smith first advised them against it in 1910. Their program now seems to be that of preserving their internal organization, religion, traditions, and cooperative way of life. The other factions, however, seem to have no program except the political one, and their community activities consist entirely in holding meetings for political purposes.(14: I) By 1946, the members of the various factions were ready to form a political coalition, with the exception of "Nighthawks," "Seven Clans" and "Four Mothers Nation." Recently, the "Nighthawk" Chief, William Smith, publicly embraced the agenda of Cherokee Nation of Oklahoma against the UKB. Mr. Chadwick Smith, Esq., represents the "Nighthawks" in their claim against the UKB, stating the UKB is an unauthorized "Nighthawk" splinter group. Chad Smith's own grandmother, Rachel Quinton, was a Council Member and Secretary of the UKB for a number of years, though she resigned for several years in protest of Chief Glory's collaboration with Principal Chief Keeler, and apparently never viewed the UKB as a "Nighthawk" splinter group. She reported to the UKB Council in 1963 that she had attempted without success to negotiate with Stokes Smith, as Chief of the Nighthawks at Stokes Grounds, to persuade him to work with the UKB. On the other hand, Chad Smith is an employee of the Cherokee Nation of Oklahoma court system. The "Nighthawk" Keetoowah Society and their ceremonial centers at Stokes Smith's Grounds and Redbird Smith's Grounds were always very important, particularly in their heyday, but the Keetoowah Band has survived regardless of fluctuations in activity of the various Keetoowah Societies. In 1988, the "Nighthawk" organization established yet another non- profit organization under Oklahoma statutes. The UKB Charter, Constitution and By-laws were designed precisely to insure that such independent and unstable factions could benefit from membership in a federally-recognized tribe while maintaining their separate identities and agendas. According to the UKB Charter, the UKB can extend separate charters to the various Keetoowah organizations whom it recognizes, regardless of their own unique membership requirements and laws, including religious canons. The Foster Faction, called the Eastern Immigrant Cherokees, or Eastern and Western Cherokees, claimed about 1000-2000 full-blood members in 1937, and about 200 mixed-bloods, located principally in Delaware, Adair, Cherokee, Mayes and Sequoyah Counties. The group organized in 1906 under Taylor and Hildebrand to pursue claims against the U. S. This faction formalized its organization under the Keetoowah Society, Inc., in 1910, and hired the same attorney. The group became embroiled with the Keetoowah Society, Inc., over apportionment of claims monies, and did not survive the resolution of these claims. The Cherokee Immigrant Indians, organized in 1907 under Joe Fox and Coming Snell. In 1937, they were under the leadership of a 67-year-old Baptist Deacon and former "Nighthawk" Keetoowah named Ned Blackfox, and had a roll of 3,986, of whom Wisdom presumed only one-quarter or fewer were active, almost all of whom were full-bloods living in Cherokee, Delaware, Adair, Muskogee, Mayes and Sequoyah Counties. Blackfox left the "Nighthawks," partly due to disagreements about participation of Keetoowahs in the fighting in World War I.(14: I) Blackfox set up his organization because of his frustration with the apparent reluctance of the Keetoowah Society, Inc., or the "Nighthawks" to force the U. S. to abide by the treaties of 1835 and 1836, which had guaranteed the lands of the old Cherokee Nation to the full-bloods. Blackfox claimed to head the remaining cohort of the original Ross party, and eventually affiliated with the Eastern Immigrant group, to become their Chief. He and most of his followers distrusted government credit programs.(14: I) The Seven Clans Society, formerly known as the Goingsnake Fire of the Nighthawk Keetoowah Society, contained about 120 families in 1937, though Superintendent Roberts claimed there were 18-20, or 20-30 families. Nearly all were full-bloods from north of Proctor in Cherokee and Adair Counties. The leaders were Jim Hogshooter and Eli Pumpkin. They objected to the abuse of common property by the "Nighthawks" central leadership, and sought to pool members' holdings to assure the prosperity of their families. Hogshooter was former assistant chief at Buffalo Town under Sam R. Smith of the "Nighthawks," and went back to Adair County after the Medicine Men at Buffalo Town passed him over for Chief. He objected to the practice of setting up chiefs and declaring them Medicine Men at the same time, due to the declining membership in the "Nighthawks." However, when he and Eli Pumpkin took up their own fire in Adair County, and were unable to find sufficient participants, they installed a woman and an eight-year old boy as Medicine Men, virtually insuring scandal. The Seven Clans Society kept the Goingsnake fire going, when the "Nighthawks" leadership at Buffalo Town wanted to close it down. Levi Gritts attributed the death of Hogshooter, the drunken comportment of Eli Pumpkin and his followers, and the apparent dissolution of the Goingsnake District to the misuse of the Goingsnake Fire by the Seven Clans Society.(Gritts, in 14: I) The Medicine Society was almost gone by 1937, though two brothers, White Tobacco Sam and Charley Sam (who referred to themselves as a John Ross faction), were trying to keep it going. White Tobacco Sam was on the Board of Trustees of the Keetoowah Society, Inc., in the 1940s. In the 1970s Archie Sam (White Tobacco Sam's son), and his friends revived the Medicine Springs (Nuwoti in Cherokee, Uwiqe Hiliswa in Creek) fire in Sequoyah County, also associated with the name Natchi/Tsalagi/Abihka. Robert and Eliza Sumpka and their friends continued a grounds into the 1980s. Archie Sam never abandoned the hope of regaining the seven sacred wampum belts from the "Nighthawks," claiming his group had original custody of them. The members of this faction merged entirely with the UKB, Four Mothers Nation (with whom they had ancient ties), Creek Nation, or Cherokee Nation of Oklahoma. In the early 1900s, Redbird Smith himself co-sponsored the revival of at least one important opposing faction, the Four Mothers Society, or Nation. Four Mothers Nation sought to unite traditionalists of the Five Tribes under one central fire. The "Four Mothers" name referred to the Cherokee, Choctaw/Chickasaw, Creek and Seminole bodies. Interestingly, this group was Keetoowah Cherokee in composition only in part; for BIA investigators found that most members were Creek. This group could constitute an Indian community, but strictly speaking, not a historical tribe. Redbird Smith's "Four Mothers" friends believed that the ancient common Mound Builder religion of the southeastern tribes united them into one culture, and religious unity should forge them into a Nation. Only the Keetoowah members of the Four Mothers Nation were eligible for membership in the UKB in 1946, and that remains true today. Four Mothers Nation, as well as the Seven Clans Society, tried without success to organize under OIWA and IRA until the 1950s, apart from any other entity, failing because the Secretary of the Department of the Interior had determined that they were factions of the UKB. Four Mothers Nation still shows no interest in merging with the Keetoowah Society, Inc. Undoubtedly, the "Nighthawk" Keetoowah Society leadership contributed to Keetoowah factionalism in various ways, and inadvertently assured that neither the "Nighthawk" organization, nor Keetoowah Society, Inc., though federally chartered in 1905, would ever be an umbrella organization for all the Keetoowah people. Both the legislative intent of the 1946 Act and the record of the Act's implementation prove the "Nighthawk" Keetoowah Society's recent claims against the UKB to be a thinly-veiled effort on the part of Redbird Smith's heirs and their followers to gain by fiat a secular and religious authority over the Keetoowah people. The Keetoowah Society, Inc., and the "Nighthawks" chose not to submit to the authority of the UKB. The "Nighthawks" ordered their members not to join the UKB. The "Nighthawks" refused to seek a UKB Charter, or support "Nighthawks" as candidates up for election to the UKB Council. The "Nighthawk" Keetoowah Society always was influential, but it never controlled all the various factions of Keetoowahs. The "Nighthawks" had distanced themselves from the group called the Keetoowah Society, Inc., even before the latter group obtained their Federal Charter on 20 September 1905. Neither group controlled the all the christian Keetoowahs, or various independent Keetoowah ceremonial grounds and sects in the Cherokee Nation. Though various of these organizations subsequently dissolved, their members and descendants compose most of the UKB membership today, due to the organization work from 1937 to 1950 that resolved many of their differences and united them politically, while members and factions retained their religious and other distinctions. Therefore, the name itself, "United Keetoowah Band," reflected the purpose of UKB organization effort as far as Congress, the Indian Service and the Band itself were concerned: to unite all the Keetoowah factions, if possible, and to provide for the broadest possible participation and involvement in the culturally Cherokee population in the UKB organization effort. The plan assured that the Keetoowah Society, Inc., and the "Nighthawks," along with the other Keetoowah organizations and their members, would have a full right to participation and membership in the UKB. If any organization was to have a dominant role, their dominance would be with the consent of the members of the other factions, or due to larger numbers participating in elections. The "Nighthawks" altogether refused to participate in the organization of the UKB. Many enrolled members of the UKB consider themselves Keetoowah traditionalists and spiritualists, while maintaining church membership, with no apparent conflict. A succession of christian church leaders and ministers has served on the UKB Council. The Keetoowahs of the UKB organized themselves and conducted their local activities at the time of reorganization, as is true today, primarily around neighborhood churches, community centers and ceremonial grounds. The growing tribal complex at Tahlequah, started in Chief John Hair's administration, has been the center of this activity. The entire Keetoowah social network, primarily settled among the northeastern Oklahoma counties of Adair, Cherokee, Sequoyah, Delaware, Mayes, Muskogee, Craig, Nowata, Rogers, Tulsa, Washington and Osage, composed the Keetoowah Band. The Act of August 10, 1946 (60 Stat. 976) provided that the Keetoowah Indians of the Cherokee Nation of Oklahoma "shall be recognized as a band of Indians within the meaning of Section 3 of the Oklahoma Welfare Act." Congress expressly permitted the Keetoowah Indians "to organize apart from the Cherokee Nation as a separate band." [See Letter, decision of September 20, 1949, Assistant Commissioner for Indian Affairs John H. Provinse to Houston B. Teehee, attorney for the Seven Clans Society]. In denying the right of separate recognition for the Seven Clans Society or other splinter groups to organize apart from the UKB, the Department clarified its position on the Keetoowah Band's right to land acquisition in Oklahoma and as to the Band's sovereign authorities under the Keetoowah Act. Only the United Keetoowah Band entity, organized fully under OIWA and IRA, functioned as a governmental entity in the full sense from 1906 to 1946; and after the Keetoowah Act, the UKB functioned under their own OIWA/IRA government. So one finds that of the various Cherokee groups in Oklahoma and elsewhere, only the United Keetoowah Band of Cherokee Indians in Oklahoma and the Eastern Band of Cherokees has succeeded in organizing and conducting its affairs under OIWA/IRA. The burden rests with Cherokee Nation Oklahoma to show its own parallel source of congressional reorganization authority. In denying the continuous existence and reorganization of the UKB, the BIA and Department of Interior, through their staff and agents, have disregarded original records pertinent to the implementation of the Act of August 10, 1946. These documents include the approved Charter, Constitution, Bylaws and related organic documents of The United Keetoowah Band of Cherokee Indians in Oklahoma. These organic documents, congressionally authorized and administratively ratified, now rest in the National Archives, Washington, D. C.(*: IV) These documents, and accompanying departmental orders and congressional and other correspondence, conclusively prove the UKB's autonomous existence as a recognized Indian tribe, fully entitled to participate in a Federal- tribal intergovernmental relationship. Certain documents also verify the Department of the Interior's decisions fully supporting the Tribe's right to land acquisition in Oklahoma, following the Act of August 10, 1946. Monitoring studies and letters identify the causes and products of factionalism of Keetoowah sub-divisions, as well as the Department of Interior's attempts to address and resolve that factionalism during the reorganization of the UKB. These documents distinguish among the United Keetoowah Band from Cherokee Nation, the Nighthawk Keetoowahs, and the Keetoowah Society, Inc., identify the United Keetoowah tribal population, and attest to the Tribe's present right to determine its own population. Departmental decisions relying on the Tribe's approved organic documents stipulate to the terminal date of the Secretary's authority to approve the Tribe's governmental edicts (3 October 1960). The NARA holdings on the UKB, in these respects and otherwise, lay to rest the most important arguments denying the continuous, autonomous sovereign existence of the Tribe under the present governing documents, since 1950. The records indicate that the key figures in UKB reorganization included: the Keetoowah Council and other Keetoowah leaders and elders; in Congress, the Oklahoma 2nd District Member of Congress Stigler (who represented Adair, Cherokee, Haskell, McIntosh, Muskogee, Okmulgee, Sequoyah and Wagoner Counties), and Oklahoma Senator Elmer Thomas; and in the Executive Branch, Interior - Secretary William E. Warne, Interior - Secretary Dillon S. Meyer, Solicitor - Indian Affairs Felix Cohen, Solicitor - Indian Affairs Abe Fortas, Assistant Commissioner D'Arcy McNickle, Commissioners Zimmerman and Myer, Assistant Commissioner Provinse, and Muskogee Agency Superintendent (also Five Tribes Area Director) W. O. Roberts. Most of the exchanges of correspondence are among responsible officers, administrators and legislators regarding the Keetoowah reorganization process.(*: IV) KEETOOWAH COHESIVENESS AND CONTINUITY AFTER 1906 [Note: The following section relies primarily on Felix S. Cohen, Felix S. Cohen's Handbook on Federal Indian Law (Charlottesville, Va.: Michie Bobbs-Merrill, 1982); 80: I] A series of congressional Acts before Oklahoma's statehood restricted the governmental authorities of the Five Tribes in Indian Territory without utterly eroding them. The Oklahoma Organic Act, Ch. 182, 26 Stat. 81 (1890), expanded Federal jurisdiction, extended certain Arkansas laws over non-indians in the diminished Indian Territory, which was occupied by the Five Tribes. The allotment process began in 1893 for the Five Tribes with the creation of the Dawes Commission, which negotiated with these Tribes for allotment in the Appropriations Act of March 3, 1893, ch. 209, Sec. 16, 27 Stat. 612, 645 [see Woodward v. DeGraffenried, 238 U. S. 284 (1915)], and Congress began to diminish the powers of the Five Tribes. The Act did not affect tribal jurisdiction, generally, over tribal members. The Act of March 1, 1889, 25 Stat. 783, 784, 788, established a special Federal court in Indian Territory, with exclusive jurisdiction over all Federal crimes not punishable by death or imprisonment at hard labor, and over certain civil cases, except for "offenses committed by one Indian upon the person or property of another Indian." However, the Curtis Act, Act of June 28, 1898, ch. 517, 30 Stat. 495, made civil laws of the Five Tribes unenforceable in Federal Court (Sec. 26, 30 Stat. at 504) and abolished tribal courts (Sec. 28, 30 Stat. at 504). The agreements with the Five Tribes varied in particular ways. For instance, the Cherokee Nation Agreement provided that nothing in it was to be interpreted as reviving or reestablishing tribal courts that earlier Acts of Congress had abolished (Agreement with the Cherokee Nation, April 1, 1900; Act of March 1, 1901, ch. 675, para. 72, 31 Stat. 848, 859). The courts of the Seminole, Choctaw and Chickasaw Nations appear to have preserved their judicial powers, by neither expressly abolishing nor preserving them. The effect of the Five Tribes Act was to require presidential approval before the creation of new courts and tax structures.(76: I) The Act of March 2, 1906 (34 Stat. 822) continued the "present tribal governments" of the Five Civilized Tribes, until all of the property of the tribes had been distributed to individual members. The Act of April 26, 1906, ch. 1876, 34 Stat. 137 provided mainly for the completion of the allotment process and the disposition of tribal lands but included some provisions diminishing tribal governmental powers. The Act allowed the U. S. President to fill the office of Principal Chief of Cherokee Nation as provided (Sec. 6, 34 Stat. at 139), abolished tribal taxes under tribal law or Department of Interior regulations prior to dissolution of the tribe (Sec. 28, 34 Stat. at 139), required presidential approval of all tribal legislation and contracts affecting tribal property (Sec. 28, 34 Stat. at 148), and limiting the lengths of council sessions to 30 days (Sec. 28, 34 Stat. at 148). The Five Tribes Act of 1906 provided for final disposition of the property and legal affairs of the Five Tribes, with special emphasis on the allotment process, and the establishment of municipalities in Indian Territory, clearing the way for statehood. The Act's language adopted language from various of the agreements with the Five Tribes. Very important provisions drastically limited the sovereignty of Cherokee Nation: Section 11 [Tribal Taxes Abolished] . . . Provided, That all taxes accruing under tribal laws or regulations of the Secretary of the Interior shall be abolished from and after December thirty-first, nineteen hundred and five, but this provision shall not prevent the collection after that date nor after dissolution of the tribal government of all such taxes due up to and including December thirty-first, nineteen hundred and five, and all such taxes levied and collected after the thirty-first day of December, nineteen hundred and five, shall be refunded. Section 28 [Tribal Government Preserved to the Extent Not Terminated] . . . Provided, That the Tribal existence and present tribal governments of the Choctaw, Chickasaw, Cherokee, Creek and Seminole tribes or nations are continued in full force and effect for all purposes authorized by law, until otherwise provided by law. . . . but the tribal council or legislature in any of said tribes or nations shall not be in session for a longer period than thirty days in any one year; Provided, That no act, ordinance, or resolution (except resolutions of adjournment) of the tribal council or legislature of any of said tribes or nations shall be of any validity until approved by the President of the United States; Provided further, That no contract involving the payment of expenditure of any money or affecting any property belonging to any of said tribes or nations made by them or any of them or by any officer thereof, shall be of any validity until approved by the President of the United States. The Cherokee Nation still had a special trust relationship with the Federal government, and had not been terminated in the sense that tribes were during the 1950s. Congress expressly extended the existence of the Cherokee Nation, and intended that members could elect to continue its functions, or abandon tribal relations as they saw fit. The Cherokee Tribe retained basic powers necessary to carry on self-government, including the right to choose a form of government and select representatives, and to disburse assets. By the 1930s, the Department found no functional Cherokee Nation government, but only a shell, consisting of the presidentially-appointed Principal Chief, whose main function was to sign papers disposing of Cherokee assets. Also, after all the legislation of the 1890s to 1907, congressional limitations on Cherokee Nation's sovereignty far outweighed the retained attributes. The continuing impact of old Cherokee Nation laws and constitution(s) or amendments (particularly the 6 September 1839 Constitution) remains unclear, even today. Drywater v. Keeler, No. 75-247-C, Slip Op. (D. Oklahoma March 31, 1976), in dictum, suggested that the old Constitution was void, and though the 1975 Constitution purported to supersede the 1839 Constitution; however, it is unclear how such a Constitution could supersede the old one unless formed under the 1934 and 1936 Acts, or similar express Federal legislative authorization. Harjo declared that the old Creek constitution remained valid, but the court had difficulty understanding how that document might still apply, and that appears to be the case for CNO. Even where new constitutions have "superseded" the old, as in the cases of the non-OIWA, non-IRA constitutions of Seminole and Cherokee, the force and effect of the old laws and their relationship to the new constitutions remains unclear. One thing is certain: the 5 July 1976 non-OIWA, non-IRA constitution of CNO had no effect on the pre-existing OIWA and IRA Charter and Constitution of the UKB. The admission of Oklahoma to Statehood on 16 November 1907 automatically deprived the Nations of legislative and civil functions in the old Indian Territory. In 1935, James W. Duncan, Secretary of the Keetoowah Society, Inc., wrote, "By Acts of Congress . . . The Cherokee Nation's laws . . . had been taken from them, so that . . . [Cherokee Nation lacked] authority to enact any laws on its behalf. . . . Everything seemed hopeless. The Nation as a Nation was dead;" and Levi Gritts, Vice President of the Society, Inc., stated, "the treaty of 1898 . . [provided for] land allotment and the abolishment of the Cherokee Nation and government."(51: IV) In 1975, Principal Chief W. W. Keeler wrote: Since 1907, when Oklahoma became a state, the Cherokee Nation as a political entity ceased to exist. The Federal government, believing that the continuation of political bodies within the Five Civilized Tribes might ultimately bring about problems in the newly formed state, had provided that the Tribe could no longer legally elect their own leaders. . . .(11: I) So, from the 1890s to 1906, a succession of Acts of Congress diminished the governmental authority of Cherokee Nation, and the people were on their own, while Section 28 of the 1906 Five Tribe Act expressly preserved the existence of rudimentary tribal governments until Congress provided otherwise: [Provided] . . . That the tribal existence and present tribal governments of the . . . [Five Civilized Tribes] or nations are hereby continued in full force and effect for all purposes authorized by law, until otherwise provided by law, but the tribal council or legislature in any of said tribes or nations shall not be in session for a longer period than thirty days in one year: Provided, That on act, ordinance, or resolution (except resolutions of adjournment) of the tribal council or legislature of any of said tribes or nations shall be of any validity until approved by the President of the United States: Provided further, That no contract involving the payment or expenditure of any money or affecting any property belonging to any of said tribes or nations made by them or any of them or by any officer thereof, shall be of any validity until approved by the President of the United States. Also, Section 58 of the Agreement with the Cherokee Nation, April 1, 1900 had said, "The Tribal Government of the Cherokee Nation shall not continue longer than March 4, 1906." The U. S. abolished all the Cherokee Nation's independent judicial and legislative powers, and most of the Tribe's administrative functions, and eliminated popular elections of officers. Congress realized that unless the U. S. presidents had the power to appoint tribal leaders as agents of the U. S., the government would be helpless to assure orderly, timely disposition of allotted lands and other assets of Cherokee Nation. The continued existence of the office of Principal Chief also helped the U. S., Oklahoma, and business interests to avoid thorny problems involving unresolved legal issues relating to Cherokee Nation. The practical effect of Section 28 of the 1906 Act, in softening Section 58 of the Agreement with the Cherokee Nation, April 1, 1900, was to mutate the Principal Chiefs into Viceroys of the President, with jurisdiction over the Five Civilized Tribes as colonial governments, provided that these "Chiefs" would have no more independent authority than any other Federal employee or appointee. The Principal Chiefs' perceived source of authority, as presidential appointees, was not the inherent sovereignty of the tribe, but of the United States, through Section 28 of the 1906 Act. Although the inherent sovereignty of the Five Civilized Tribes persisted, as the Harjo Court eventually decided in 1976, the tribes were under the direct governmental control of the United States between 1907 and 1970, or even later. Until Cherokee Nation reorganizes under OIWA and IRA, the government of Cherokee Nation relies on the condonation of the United States in the exercise of tribal sovereignty, under precisely the same limitations as Section 28 of the 1906 Act provided; recall that Section 58 Agreement with the Cherokee Nation, April 1, 1900 had declared the intent of Congress that "The Tribal Government of the Cherokee Nation shall not continue longer than March 4, 1906." Further, if the 1937 Director of Lands determination was correct, then as long as there may be claims against the U. S., a Cherokee Nation government organized under OIWA and IRA must assure that "those persons whose names are on the final rolls of the Cherokee Nation [who] have certain rights in the remaining assets of the tribe" have the right to participate in Cherokee Nation's assets, in order to avoid litigation. The UKB is not required to include all Cherokee Nation Dawes descendants as members, and is not subject to direct Federal statutory control of its membership decisions. Considering the Director of Land's 1937 Cherokee Nation determination, it seems unlikely that Cherokee Nation would risk any new tribal roll that would deny participation of any descendants in the remaining assets of the tribe. The Cherokee Chiefs who served through 1970, if they had been subject to a new government organized under OIWA and IRA, would not have been able to control decisions regarding Cherokee claims, as Milam and Keeler did. Under the existing 1975 Constitution, the final authority in Cherokee affairs, including the prosecution of claims, remains the Chief. Chiefs Swimmer and Mankiller have had the same authority as Milam and Keeler. Cherokee Chiefs under a non-OIWA/IRA government may be selected, perhaps even removed by the voters if the Chiefs allow it, but the final decision on seating a Chief still rests with the Secretary. Under the present arrangement, the Cherokee Chief can continue to exercise direct control, as federally- authorized caretaker of Cherokee property interests, under threat of suspending the current government. History suggests that the current arrangement of CNO governmental operations makes that drastic prospect unlikely. CNO has no real incentive to reorganize under OIWA, because a genuine new Cherokee tribal government would pose a problem for the current Chief, and the relatively uneventful prosecution of future Cherokee claims. The authority and government of a Chief of a Cherokee Tribe reorganized under OIWA and IRA would be "limited to the property and other benefits to be acquired under the Act," precisely as in the case of the Chief and government of the UKB. The UKB is that hypothetical reorganized Cherokee tribal government. A centralized, independent Cherokee government would have raised opposition to the continued erosion of property rights, among other things. Obtaining permission from the people themselves for completing all the necessary steps in closing down of tribal operations would have been cumbersome and inconvenient. The legal fiction of a recognized tribal government had to remain in place, or it would have been readily apparent that the powers inherent in the people to determine their own affairs had reverted entirely to them. While Congress did not terminate Cherokee Nation, the presidentially-appointed Principal Chiefs retained and exercised only the powers necessary to accommodate the U. S. in the dismantling of Cherokee Nation. The official record discloses no significant independence of thought or action in office by any of the presidentially-appointed Principal Chiefs. These individuals were not appointed to be advocates for their people. These were successful Oklahoma business leaders, often involved in oil and mineral industry, who served as colonial viceroys, entirely at the will of the U. S. President. Though some appointees perhaps offered letters of support from tribal people to gain their appointments, these support letters only assured that their appointments and activities would create no controversy. None of them was elected to office or subject to discipline or removal through popular vote. Business contacts and political affiliations were the most important considerations in these appointments. Practically speaking, there was little opportunity for these appointees to occasion any inconvenience even if they had been so inclined. Most served as Cherokee Nation's Principal Chief only to sign documents. One served for thirty minutes, hardly enough to justify a hotel stay. These Cherokee Nation Principal Chiefs served at the pleasure of presidents, but they never were the Chiefs of the Keetoowah Indians. Some congressional acts and decisions strengthened the governmental powers of the Five Tribes after statehood, particularly in the area of tribal land rights. In United States Express Co. v. Friedman, 191 F.673 (8th Cir. 1911), the court found that tribal lands the Five Tribes retained remained Indian Country. In Oklahoma Tax Commission v. Sac and Fox Nation U. S. Law Week, No. 92-259, 17 May 1993, the U. S. Supreme Court strengthened that finding. The Appropriations Act of May 24, 1922, ch. 199, 42 Stat. 552, 575 (at 25 U. S. C. Sec. 124) protected the Five Tribes from Indian Service mismanagement. The Act allowed the Secretary: to disburse tribal funds without congressional authorization to equalize allotments; to make payments to individual members; to provide education services; to employ attorneys; and to pay salaries and related expenses of Chiefs, Secretaries, interpreters and mining trustees, without limiting the use of tribal funds for tribal government expenses, such as the costs of tribal council meetings. The Oklahoma Indian Welfare Act (OIWA), the Act of June 25, 1936, ch. 831, 49 Stat. 1967 (25 U. S. C. Secs. 501-509) extended to Oklahoma tribes the same opportunities for reorganization which were available to other tribes throughout the country under IRA. OIWA and IRA reaffirmed, or "vested by existing law," tribal powers of inherent sovereignty that Congress had not extinguished expressly. The Cherokee Nation of Oklahoma, or at least its Principal Chief, was as indifferent to reorganization in 1937 as it had been in 1934. Correspondence and studies supporting the legislative history of the Indian Reorganization Act in 1934, show that the Keetoowahs were keenly interested in the prospect of reorganization, and turned out in force (436 of 947 in attendance!), along with representatives of other Muskogee Area tribes, at a meeting to discuss IRA on 22 March 1934 in Muskogee: As was his custom, Collier immediately began to focus upon the evils of allotment but particularized it to his specific audience. Using many of the same examples and statistics that he presented to the Anadarko conference, Collier attempted to show the delegates how the lands of the Five Civilized Tribes had been decimated over the years. Furthermore, the average per-capita income among Indians per year was only forty-seven dollars. No wonder, Collier reasoned, the vast majority of Indians were living on the remnants of land owned by relations. Whereas the national wealth had increased, the wealth of Indians was vanishing. Collier was emphatic in emphasizing that under the bill no land would be taken from landholding Indians and given to landless Indians. The sensitivity of the land issues, along with a strong pitch for the economic-development provisions of the bill, occupied most of Collier's attention during the season. One of Collier's old nemeses, Joseph Bruner, attended the Muskogee meeting. Bruner, a dedicated assimilationist, headed up the National Indian Confederacy, which strongly opposed the bill. Bruner, however, was not given much of an opportunity to perform at the meeting. When the Keetoowah Society introduced a resolution praising Collier for coming to the session and calling for the conference to endorse his bill, Bruner raised a point of order arguing that the Keetoowah was only a clan and not a tribe and could not offer such a motion. The floor rejected this point, stating that the resolution had already been presented. Bruner then moved to adjourn but was ignored by the Chair. Earlier Bruner had asked a question concerning employment of Indians and whether they would be as capable as whites. Walter Woehlke responded for Collier, who had lost his voice by this time, brusquely noting that the question had been answered fully and exhaustively earlier. . . . Collier succeeded in convincing a number of delegates of the wisdom of supporting his bill. The Eastern Emigrant and Western Cherokees passed a resolution favoring the bill. . . . Considerable opposition continued to flourish among the proassimilationist Indians, but Collier must have been pleased with the Oklahoma achievements.(82: I, pp. 114-115) Commissioner John Collier, in writing to the tribes and to members of Congress in the Muskogee area, explained, "land holdings shall be permanently protected; . . . . now lands shall be added, and shall be permanently protected; that tribes may organize for self-government, taking on more power or less, according to their own choice; that new Federal court facilities shall be extended to Indians."(9: IV) The Amreican Indian Policy Review Commission found in 1977 that this promise was never fulfilled, except in those cases where Congress expressly provided for the purchase of lands for tribes organized under OIWA and IRA. Oddly, John Cochran, Vice-President of the Kee-Too-Wah Society, Inc. fabricated a telegram on 6 April 1934 and wired it at Hulbert, Oklahoma, to make it appear that Secretary James Duncan, Vice-President John Cochran, President Gabriel Terrapin of the Kee-Too-Wah Society, Inc., and other Cherokee leaders and their constituencies all opposed IRA. Commissioner Collier responded with another pleading letter, and Secretary Duncan of the Kee-Too-Wah Society, Inc., responded with an apoplectic, handwritten note of protest. Duncan stated: Allow me to say further that our Society has among its laws what is called an Executive Committee of five clothed with authority to pass on and transact any business that may come up when the council is not in session. I am chairman of that committee and the day before your meeting in Muskogee I wrote up a resolution indorsing the Wheeler-Howard bill as far as we knew of it at that time and the Committee signed it and while you were speaking in Muskogee I handed this resolution to Mr. Houston B. Tehee with the request that he hand it to you and he told me he would do so. You should find this resolution among your papers.(4: IV; 5: IV; 7: IV; 8: IV) Duncan shrewdly pointed out that the President would not have signed anything only as "Gabriel," and that there was no real return address. Needless to say, at the next Council meeting, Mr. Cochran's fellow Council members and constituents crawled him up one side and down the other. The Committee of the Lost Club, composed of Dawes enrollees of the Five Tribes, opposed reorganization (Letter, 30 March 1934, Chairperson Castella Anderson, Lost Club), in a note to Commissioner John Collier, who responded on 20 April 1934 with a most conciliatory memo, saying, "Surely there must be some provisions of the bill which meet with your approval." He turned out to be dead wrong about the majority of Cherokee descendants. Commissioner John Collier issued a Statement on the progress toward the education of Indians on the benefits of the IRA, speaking of the nine conventions over seventeen days in which 6,000 Indians had participated to learn the objectives and purposes of the Wheeler-Howard Bill. He had found widespread support, while: We have also learned that almost without exception the opposition stirred up among the Indians against this legislation has been fomented and fanned by the crass, unadulterated self-interest of white and Indian persons who are afraid, often without reason, that under the proposed act they will lose advantages they now possess.(10: IV) The second paragraph of his address is of particular interest, because he made the Keetoowahs his star pupils: The Wheeler-Howard bill was strongly and enthusiastically endorsed by many delegations representing tribes with predominantly Indian blood, tribes which have long tasted the bitter fruit of the allotment law through the operations of which the bulk of their members has become landless and impoverished. The Kee-tooh-wa . . . [he mislabeled the Corporation as "Night Hawk"] society of the Cherokees in eastern Oklahoma, a society of 6,000 members, mostly descendants of the Cherokees who bitterly resisted allotment thirty years ago, transmitted a strong endorsement of the proposed legislation.(10: IV) Clearly proud of the Keetoowahs' resistance to anti-reorganization propaganda, he quoted one of the Cherokee representatives at the Muskogee conference, who replied archly to claims that the IRA was a "back to the blanket" bill, "What must we return to? We never had the blanket habit." The question remains: WHY DID CHEROKEE NATION NOT SEIZE THE OPPORTUNITY TO REORGANIZE UNDER OIWA AND IRA? Part of the answer is that the Cherokee Nation, consisting of all its adopted elements and the freedmen, was not the same as the Cherokee Tribe of Indians that consisted aboriginally of Cherokees by blood. In Cherokee Nation v. United States, 80 Ct. Cl. 1 (1932), the Court of Claims determined that Cherokees by blood, calling themselves "the Cherokee Tribe of Indians," excluding the various tribes such as the Delawares and Shawnees, and the freedmen and white adoptees of the old Cherokee Nation, had no standing to bring a suit in the Court of Claims under the special Cherokee jurisdictional Act of March 19, 1924 (43 Stat. 27). The Cherokees by blood group, united as they were solely by ancestry, was only a descendancy class, not a cohesive governmental entity. The rest of the answer is in the Department of the Interior's Indian Organization files. A series of Land Division and BIA memoranda concluded that the Roll of Cherokee Nation of Oklahoma was closed 4 March 1907, and became final of that date, as provided by section 2 of the Act of April 26, 1906 (34 Stat. L. 137); and so: Based upon this final roll the lands of the Cherokee Nation have been allotted to the Cherokees by blood, the freedmen, intermarried whites and other citizens of the Nation, and all but a small portion of the tribal assets distributed. Section 63 of the Act of July 1, 1902, . . . provided that the tribal government of the Cherokee Nation should not continue longer than March 4, 1906 [Section 58, Agreement with the Cherokee Nation, April 1, 1900]. This provision of law was repealed by section 28 of the Act of April 26, 1906 (34 Stat. L. 137), which provided that the tribal existence and present tribal governments of the several tribes were thereby continued in full force and effect for all purposes authorized by law, until otherwise provided by law. It was further provided by the said section that no act, ordinance or resolution, save resolutions of adjournment, of the tribal council or legislature, should be valid until approved by the President. No further provisions of law affecting the tribal existence and the then existing tribal government, . . . have since been enacted by Congress. The Oklahoma Welfare Act of June 6, 1936 (49 Stat. 1967) does not repeal any of the provisions of the Act of April 25, 1906, which authorized the continuation of the Cherokee Tribal Government. It is not believed that the Oklahoma Welfare Act may be used as authority to reorganize the existing tribal government of the Cherokee Nation. On the contrary, the Act appears to contemplate the creation of a new, separate and distinct organization, to adopt its own constitution and bylaws and to procure a charter of incorporation without regard to the existing government. With respect to the existing tribal government, the freemen and intermarried whites, as well as other citizens of the Cherokee Nation, shown on the final rolls, have a voice in the limited tribal affairs which remain. If it is desired to deny the freedmen and intermarried whites the right to vote on the proposed constitution and bylaws and charter of the new organization to be created under the Oklahoma Welfare Act, it is believed that the powers and jurisdiction of the new organization should be limited to the property and other benefits to be acquired under the Act. Those persons whose names are one the final rolls of the Cherokee Nation have certain rights in the remaining assets of the tribe, and if any attempt were made to deny them the right to vote on matters which may affect such rights, it would doubtless give rise to litigation.(12: IV) When the Solicitor inquired about the status of the Five Tribes in 1938, Commissioner John Collier's response accompanied a copy of the MEMO of 25 October 1937 (enclosure 1310901). The Muskogee Area Director, Virgil N. Harrington had a note to file on this particular Memorandum dated 6 December 1962. Harrington did not press the Principal Chief to reorganize. Only with the Bellmon Bill and the Harjo decision in 1976 did the Five Civilized Tribes have the legislative and judicial foundation to pursue reorganization, as Creek Nation did in 1979. The Act of July 3, 1952, ch. 549, 66 Stat. 323 (at 25 U. S. C. Sec. 82a) recognized the authority of the Five Tribes to contract to encumber tribal funds or property with the approval of the Secretary. The Act of Oct. 22, 1970, 91st Cong., 2nd Sess., P. L. 91-495, 84 Stat. 1091, the "Bellmon Bill," "Authorizing Each of the Five Civilized Tribes of Oklahoma to Select Their Principal Officer, and for Other Purposes," is described in greater detail below. While many members of Cherokee Nation abandoned their distinct identity as Indians after 1906, those who always had opposed assimilation and the erosion of sovereignty preserved a shadow social order and government as best they could at the local and regional level. Keetoowah people remembered their inherent sovereignty after the dissolution of Cherokee Nation, and clung to their tribal relations as a fractious but determined body, dedicated to the preservation of old "Keetoowah Cherokee" values. When the UKB sought to reorganize under OIWA and IRA in 1937, they had to obtain permission from Congress to adopt a Charter under Section 3 of the OIWA, and a Constitution and By- laws under Sections 16 and 19 of the IRA. Congress consented, and validated the Band's historical existence, in the Act of August 10, 1946.(*: IV) In summary, the Curtis Act (1898) rendered civil laws of the Cherokee Nation unenforceable in Federal courts and abolished the tribal court. The Cherokee Agreement of 1901 did not refer to civil jurisdiction, but stipulated that the tribal court was not revived or re-established. The Five Tribes Act of 1906 did not mention civil jurisdiction or tribal courts, but abolished taxation, suggesting that the CNO lacked present tax authority. The 1906 Act also stipulated that tribal laws and contracts affecting property of the Cherokee Tribe are subject to the approval of the President of the U. S. It remains uncertain on what authority that CNO may enact "taxation and regulation" ordinances or laws, or to what extent CNO may enact civil laws falling within tribal jurisdiction, due to earlier Acts conferring exclusive jurisdiction on Federal courts. The CNO does not appear to have independent authority to re-establish a court system, but has received Federal authorization to run courts within the 14 county area of the old Cherokee Nation. The authority of the "judicial appeals tribunal" of Article 7 CNCA 1976 remains dubious. It appears that all laws of CNO must have the approval of the President or his representative (the Secretary) before becoming valid. All contracts affecting any property of CNO also require similar approval. It appears very likely that since at least 1979, Congress has labored under the false impression that special dispensations and revesting of sovereignty on CNO were justified, in light of their presumed reorganization under OIWA and IRA. CNO's use of backdoor routes to regaining aspects of sovereignty is not as objectionable as their efforts to terminate the UKB with no thought of due process. THE UNITED KEETOOWAH BAND, IRA (1934), OIWA (1937), AND THE FREDERIC L. KIRGIS "KEETOOWAH -- ORGANIZATION AS BAND" OPINION (1937) During the early years of reorganization, the Solicitor's individual findings that any particular group constituted a "tribe" or "band" relied on one or more of the following tests, regardless whether the group had a land base: (1) the group had treaty relations with the United States; or, (2) the group had been named as a tribe by an Act of Congress or Executive order; or, (3) it had held collective rights in tribal lands or funds; or, (4) it had been treated as a tribe or band by other Indian tribes; or, (5) it had exercised political authority over its members, through a tribal council or other governmental form. Secondary factors included proof that Congress had appropriated any funds for the group; or, that the group showed social solidarity; or, that ethnological and historical considerations supported the claim of tribal existence. The first three factors give weight given to previous congressional and executive recognition. These and the fourth criterion indicate Federal action or other identification of the group as distinct from any other. The fifth criterion concerned the group's exercise of political authority.(80: I) The other secondary factors involve the question of tribal character, as defined in Montoya v. U. S. (1908): By a 'tribe' we understand a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill- defined territory. Thus, common American Indian ancestry, common community and political leadership, and association historically with a particular territory were essential in 1937, as now, to a determination of tribal recognition, or the acknowledgment of tribal existence. Congress intended to preserve the benefits of the IRA, including especially the benefits of 25 U.S.C. 465, to Indians who were members of a recognized tribe "under Federal jurisdiction" on June 1, 1934, including land or financial supervision. Whether a tribe consists of a single entity or of several autonomous bands was not determinative. The Secretary could determine that Federal supervision should be through the vehicle of one overall entity. The Keetoowah Indians had continuing if disorderly social and governmental activity at the local level even after the dissolution of Cherokee Nation, while the Nation lay moribund, unable to act, only "governed," ad hoc, at the President's pleasure. The common misunderstandings of those who ascribe to the recent representations of the "Nighthawk" Keetoowah Society appear to rest on the premise that all Keetoowahs owe allegiance to the "Nighthawk Keetoowah Society," of which the UKB is only a splinter group. However, a confederation, or coalition government, against whom the "Nighthawk" organization was aligned, became the base of the UKB in 1939. In conducting studies supporting the legislative history of the Indian Reorganization Act in 1934, the BIA found that of the Five Tribes, only Cherokee Nation's residual executive branch had fulfilled its purpose of essentially finishing off its Nation's business, as Congress had contemplated in passing the Curtis, Dawes and related Acts.(2: IV) Cherokee Nation Dawes enrollees and descendants had no direct role in the selection of their own token Principal Chiefs, who in essence were the Executors of the deceased Cherokee Nation's estates. The old Cherokee Nation was at an end by 1934, as it was in 1907 in principle. It should be no surprise that by 1934, neither the Principal Chiefs of Cherokee Nation, nor the general class of some 39,000 Dawes enrollees and their descendants, showed any interest in reorganizing under the Indian Reorganization Act. Only the various Keetoowah factions showed interest and purpose related to reorganization, for the Keetoowah Band. The Indian Reorganization Act did not attempt to change the status quo of Indians to whom the United States already had obligations. In describing Indians which he considered to be wards, Senator Wheeler spoke of "Indians whose property was managed by the United States" [U. S. Senate, Senate Committee on Indian Affairs, Hearings on S. 2755, "To Grant to Indians Living under Federal Tutelage the Freedom to Organize for Purposes of Local Self-Government and Economic Enterprise," 73rd Cong., 2nd Sess (1934), 264); see 145: III], of "enrolled Indians" (Senate Hearings at 264), of wards (Senate Hearings at 263), and of "Indians under the supervision of the United States"(Senate Hearings at 266). Senator O'Mahoney observed that in his opinion the phrase "member of any recognized Indian tribe" would include the Catawbas whom he described as a group living together as Indians although they were not half-bloods and were apparently being ignored by the Federal government. Wheeler felt that the definition of "Indian" should be amended to exclude such groups. Collier suggested: Would this not meet your thought, Senator: After the words "recognized Indian tribe" in line 1 insert "now under Federal jurisdiction?" That would limit the Act to the Indians now under Federal jurisdiction, except that other Indians of more than one half blood would get help.(145: III, p. 266) >From this, it is clear that the drafters of the IRA indeed originally intended to exclude from the IRA some groups which could be considered Indians in a cultural or governmental sense. They did not, however, intend to use the Act to cut off Indians to whom the Federal government had already assumed obligations, i.e., those already under Federal jurisdiction, including those receiving collective services as dependent Indian communities, or whose members had received services as wards/ persons who had not abandoned tribal relations, where the tribes were presumed still politically intact, however tenuously. The specific phrase "Federal jurisdiction" is nowhere else defined in the legislative history. Instead, the history refers to "Federal supervision," "Federal guardianship," "Federal tutelage." There is some evidence that the term "Federal supervision" was tied to management of property rights.(145: III) Even so, Senator Thomas stated that appropriated money (as opposed to a land base) could be a sufficient basis for Federal supervision, since the supervisory activity was tied to management of property rights, regardless whether those rights were held in common with another Indian group.(145: III, at 79) Indeed, at least twice (with respect to Alaska Natives and to Oklahoma Indians), Collier took the position that landless Indians and Indians in states with little or no reservation lands were entitled to the benefits of 25 U.S.C. 465.(145: III) This careful awareness of the difficulty of applying a uniform definition of "tribe" is essential to an understanding of the truly "political" nature of the Federal determination of what is a "tribe." Given the deference to which that complex political question is entitled and the historical basis for a conclusion of tribal existence, the Commissioner's and Secretary's designation of the Ione Band as an Indian tribe represents informed decision-making and an attempt at concerned management. Congress eventually determined, in defining both Indian and Tribe, to adopt the present language of Section 19 of the IRA: The term "Indian" as used [in this Act] shall include all persons of Indian descent who are members of any recognized Indian tribe now under federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation and shall further include all other persons of one half or more Indian blood . . . the term "tribe" whenever used [in this Act] shall be construed to refer to any Indian tribe, organized band, Pueblo, or Indians residing on one reservation. Therefore, 25 U. S. C. Section 479 compels one to conclude that the terms "Indian" and "tribe" must be read together. The term, "Federal recognition" as applied to an Indian tribe means that there is an entity in being which the United States has recognized, through an act of Congress, or through an act of the Executive with the advice and consent of the Senate (in the case of a treaty before 1871), or as authorized by Congress thereafter. In his 1942 discussion of the scope of tribal self-government in the Handbook of Federal Indian Law, Felix Cohen wrote: Perhaps the most basic principle of all Indian law, supported by a host of decisions hereinafter analyzed, is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. Each Indian tribe begins its relationship with the Federal Government as a sovereign power, recognized as such in treaty and legislation.(80: I, p. 122; Cohen's italics) The issues of Federal recognition are whether a tribe exists, and which branch of the Federal government can recognize a tribe. In Cohen's discussion of the legal status of Indian tribes, he remarks: The question of tribal existence, in the legal or political sense, has generally arisen in determining whether some legislative, administrative, or judicial power with respect to Indian "tribes" extended to a particular group of Indians. The most basic of these issues has been the constitutional issue arising from the grant of power to Congress to regulate "commerce with . . . the Indian Tribes." The Supreme Court has, in a number of cases, taken the position that the applicability or constitutionality of congressional legislation affecting individual Indians, and the inapplicability or unconstitutionality of state legislation affecting such individuals, depended upon whether or not the individuals concerned were living in tribal relations. While thus making the validity of congressional and administrative actions depend upon the existence of tribes, the courts have said that it is up to Congress and the executive to determine whether a tribe exists. Thus the "political arm of the Government" would seem to be in a position to determine the extent of its power. In this respect the question of tribal existence and congressional power has been classed as a 'political question' along with the recognition of foreign governments and other issues of international relations. Thus in the case of United States v. Holliday, the Supreme Court held that federal liquor laws were applicable to a sale of liquor to a Michigan Chippewa Indian, despite a treaty provision looking to the dissolution of the tribe, for the reason that the Interior Department regarded the tribe as still existing.(at p. 419) The Court declared in United States v. Holliday, 70 U.S. (3 Wall.) 407, 419 (1865), the Supreme Court stated: The facts in the case certified up with the division of opinion, show distinctly "that the Secretary of the Interior and the Commissioner of Indian Affairs have decided that it is necessary, in order to carry into effect the provisions of said treaty, that the tribal organization should be preserved." In reference to all matter of this kind, it is the rule of this court to follow the executive and other political departments of the government, whose more special duty is to determine such affairs. If by then those Indians are recognized as a tribe, this court must do the same. (at p. 419) Whether a group of Indians exists as an Indian tribe is a political question. Felix Cohen explained: While thus making the validity of congressional and administrative actions depend upon the existence of tribes, the courts have said that it is up to Congress and the executive to determine whether a tribe exists. Thus the "political arm of the government" would seem to be in a position to determine the extent of its power. In this respect the question of tribal existence and congressional power has been classed as a "political question" along with the recognition of foreign governments and other issues of international relations.[Cited: United States v. Boyd, 83 Fed. 547 (4th Cir. 1897), in Cohen (1942), p. 268] In implementing the Indian Reorganization Act of 1934, the Secretary had to decide which particular groups constituted tribes. Cohen wrote: The question of what groups constitute tribes or bands has been extensively considered in recent years by the administrative authorities of the Federal Government in connection with tribal organization effected pursuant to section 16 of the Act of June 18, 1934. A showing that the group seeking to organize is entitled to be considered as a tribe, within the meaning of the act, is deemed a prerequisite to the holding of a referendum on a proposed tribal constitution, and the basis for such a holding is regularly set forth in the letter from the Commissioner of Indian Affairs to the Secretary of Interior recommending the submission of a tribal constitution to a referendum vote. In cases of special difficulty, a ruling has generally been obtained from the Solicitor for the Interior Department as to the tribal status of the group seeking to organize. The considerations which, singly or jointly, have been particularly relied upon in reaching the conclusion that a group constitutes a "tribe" or "band" have been: (1) That the group has had treaty relations with the United States. (2) That the group has been denominated a tribe by an act of Congress or Executive order. (3) That a group has been treated as having collective rights in tribal lands or funds, even though not expressly designated a tribe. (4) That a group has been treated as a tribe or band by other Indian tribes. (5) That the group has exercised political authority over its members, through a tribal council or other governmental form. Other factors considered, though not conclusive, are the existence of special appropriation items for the group and the social solidarity of the group.(Pp. 270, 271) A land base is not required for Federal acknowledgment. There may be reservations of property rights [(U.S. v. Creek Na. 295 U.A. 103 (1935)] and sovereign powers over water rights [Winters v. U.S. 207 U.S. 564 (1908)], hunting and fishing rights [Menominee Tribe v. U.S., 391 U.S. 404 (1968)], legislative, judicial and police powers over members [U.S. v. Wheeler, 435 U.S. 313 (1978); Oliphant v. Suquamish, 535 U.S. 191 (1978)], including the power to determine membership [Martinez v. Santa Clara Pueblo (1978)], and other aspects of internal sovereignty. L.R. Weatherhead observed: the term 'tribe' is used to describe a vast assortment of socio- political arrangements [fn. 27, "Because the socio-political situations in which indigenous Americans were found were varied and numerous, references . . . to the term "'tribe' in the ethnohistorical sense" refers not to a stock anthropological definition of "tribe" but rather to the peculiar history of each Indian group. Thus, in speaking of reconciling the legal and ethnohistorical meanings of "tribe," we are talking about driving a legal standard flexibility enough to include the different social, political and cultural arrangements of each American Indian group.] If carefully defined to fit the attributes of one group, the term would constitute the grossest sort of ethnohistorical fallacy as to other groups. . . . the kinds of political and social organizations ranged from that of the great League of the Iroquois, whose structure is said to have influenced the Framers of the Constitution of the United States, to the extended families or clans that were the Northwest coastal tribes. The latter existed without formal political structures, without concepts of territorial sovereignty, and with rudimentary concepts of property.(Weatherhead 77: I, p. 1) At p. 6, citing U. S. Indian Claims Comm'n, Final Report, Sept. 30, 1978, at 10, quoting from A.L. Kroeber, Nature of the Land Holding Group, 2 Ethnohistory 304 (1955), and U.S. v. Washington, 384 F.Supp. 312 (W.D.Wash. 1974), aff'd. 520 F.2d 676 (9th Cir. 1975), cert. den., 423 U.S. 1086 (1976), the author continued: The expression "tribe" often has been a tricky one for experts in Indian affairs. The term "nation" was most used in the seventeenth and eighteenth centuries and was a more appropriate designation than tribe because it referred more to a cultural than a political unity. Tribe came to be used generally after the federal government began exclusively handling Indian relations, Indians, said anthropologist A.L. Kroeber, were distinguished as they lived in a "tribal condition" or in a settled "civilized condition."Tribes were treated as sovereign-state tribes, for it made dealings more convenient and practical. "It was we caucasians," said Kroeber, "who again and again rolled a number of obscure bands or minute villages into the larger package 'tribe,' which we then putatively endowed with sovereign power and territorial ownership which the native nationally had mostly never claimed."(Weatherhead 77: I, p. 1) Congress has promulgated a variety of definitions of "tribe" so that any discussion of a single standard of tribal existence becomes meaningless, premised as it is on the view that there is no single definition. However, in applying legislation to Indians, courts and Interior consider limitations on Federal power over Indians, expressing that concern in the resolution of the question of tribal existence. There is a basic concept of tribal existence not explicit in the congressional exercise of authority over Indians. Congress has held back from defining "tribe" and has allowed Interior to promulgate regulations for determining tribal existence, partly reflecting earlier case law and administrative practice, but in other ways, setting off on a new track.(Weatherhead 77:I, p. 7) Historically recognized tribes which have a documented political relationship with the United States, but are not recognized by the Bureau of Indian Affairs, constitute a special class of tribes, between presently "recognized" tribes and tribes which never have been recognized (Mashpee v. New Seabury Co. 592 F.2d 575 (1st Cir.), cert. den., 100 S.Ct. 138 (1979). The Federal Acknowledgment Process regulations at 25 C.F.R. 83.1, et seq. fail to accommodate such tribes. That the United States fails to carry out its duties as trustee does not sever the trust relationship. A tribe should not be penalized due to the Federal government's failure to fulfill its trust responsibilities. Moreover, the U. S. Supreme Court has held that even "long lapse(s) in Federal recognition" do not destroy the Federal power to deal with recognized tribes. United States v. John, 437 U. S. 634, 652-653 (1979). In the mid-1950s, during termination, the United States began to distinguish between "recognized" and "unrecognized" tribes. BIA recognition decisions frequently were made on an ad hoc basis. The result, as reflected in 1 American Indian Policy Review Commission, Final Report (May 1, 1977), was the unavoidable conclusion that: Trying to find a pattern for the administrative determination of a federally recognized Indian tribe is an exercise in futility. There is no reasonable explanation for the exclusion of more than 100 tribes from the federal trust responsibility.(p. 462) Just before leaving office and excepting a consulting contract with CNO in January, 1980, Assistant Secretary Forrest Gerard penned a memorandum rescinding the May 1979 order of Assistant Deputy Commissioner Seneca. The May 1979 Seneca order had required CNO to acquire a concurring resolution from UKB in order to apply for programs under P. L. 93-638 as a "tribal organization." Congress excluded the UKB from participation in Federal programs in the northeastern counties of Oklahoma in 1991, except to the extent that members of the UKB still may elect to affiliate individually with CNO, and thereby receive services. The termination of the UKB in 1991 for the purposes of receiving services in the northeastern counties of Oklahoma was premised on the refusal of Congress and the BIA to acknowledge the legislative intent of the 1934, 1936 and 1946 Acts, and the record of the interpretation and implementation of those Acts. The 1937 Wisdom report, cited extensively before, largely was the result of the Society, Inc.'s initiative to obtain the right of the Keetoowah Indians to reorganize, using the Keetoowah Society, Inc., as the vehicle. Wisdom failed to mention the existence of the 20 September 1905 Federal Charter of the Keetoowah Society, Inc., although that document confirmed and expressly recognized the existence of the Keetoowah Indian community as a political entity. The Keetoowah Society, Inc., requested permission to reorganize under Section 3 of the Indian Reorganization Act in 1937, but neglecting the existence of a current valid Charter, the Department of the Interior rejected the request. Section 3 of the Oklahoma Indian Welfare Act states: Any recognized tribe or band of Indians residing in Oklahoma shall have the right to organize for its common welfare and to adopt a constitution and bylaws, under such rules and regulations as the Secretary of the Interior may prescribe. The Secretary of the Interior may issue to any such organize group a charter of incorporation, which shall become operative when ratified upon a majority vote of the adult members of the organization voting: Provided, however, That such election shall be void unless the total vote cast be at least 30 per centum of those entitled to vote. Such charter may convey to the incorporated group, in addition to any powers which may properly be vested in a body corporate under the laws of the State of Oklahoma, the right to participate in the revolving credit fund and to enjoy any other rights or privileges secured to an organized Indian tribe under the Act of June 18, 1934 (48 Stat. 984): Provided, That the corporate funds of any such chartered group may be deposited in any national bank within the State of Oklahoma or otherwise invested, utilized, or disbursed in accordance with the terms of the corporate charter.(Act of June 26, 1936, 49 Stat. 1967, Section 3) Acting Solicitor Frederic L. Kirgis, also unaware of the Keetoowah Society, Inc.'s 20 September 1905 Charter, advised the Commissioner in Keetoowah -- Organization as Band: A question has been raised by the Oklahoma Regional Coordinator in charge of organization [Monahan] whether the Keetoowah Society of Oklahoma can be considered a band for the purposes of organization under the Oklahoma Indian Welfare Act. Keetoowah Society is an organization of full-blood Indians who originated almost a century ago for the preservation of Indian culture and traditions. A secret society representing the most conservative portion of the Cherokee Indians, it has had several specific objectives, principally opposition to slavery and subsequently, opposition to allotment. Facts concerning its origin, organization and purpose are set forth in a report compiled by Mr. Charles Wisdom, anthropologist. He states that while the name is derived from an ancient Keetoowah town or band of Cherokee Indians in what is now North Carolina, there is no historical connection between the society and the band; there exists only a cultural and mystical relationship with the early group. Due to differences in philosophy the society is now divided into six factions. Most of these faction have a membership extending over various district and one or two have strong network of organization over the Cherokee region. The Keetoowah Society, Inc., had applied for reorganization apart from the Keetoowah Indians as a body; that proposal for separate reorganization could not stand. Kirgis continued: In my opinion neither the Keetoowah Society nor any of its factions can be considered a band, much less a "recognized band" under section 3 of the Oklahoma Indian Welfare Act. The primary distinction between a band and a society is that a band is a political body. In other words, a band has functions and powers of government. It is generally the historic unit of government in those tribes in which bands exist.(Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs: 1917-1974, Vol. I (Washington, D. C.: U. S. Department of the Interior, 1975), p. 774) Kirgis did not identify which Keetoowah Society he meant in referring to "the Keetoowah Society." Among the Keetoowahs, according to Wisdom's study, were tribal towns, factions, and factions of factions, besides the Corporation. It appears unlikely that Kirgis knew of or understood the significance of the Corporation's charter. Kirgis referred to the Keetoowah Society, Inc.'s history without referring to the "Inc." The Nighthawk faction had originated from the Keetoowah Society just before the Society incorporated. As to the various factions, societies, and lesser units of the Keetoowah Band this characterization is undoubtedly correct. Kirgis continued: Because of Federal intervention aimed to destroy tribal organization many recognized bands have lost most if not all of their governmental functions. But their identity as a political organization must remain if the group of Indians have be considered a band or tribe. This character of a band as an existing or historical unit of Indian government seems to be recognized in sections 16 and 19 of the Indian Reorganization Act [1934] which refer to "powers tested in any tribe or band". In the administration of the act, organization of tribes or bands have included such limited powers of government as remain and are considered appropriate. It is this feature which distinguishes organization under section 3 of the Oklahoma Act from organization or voluntary associations under section 4 (Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs: 1917-1974, Vol. I (Washington, D. C.: U. S. Department of the Interior, 1975), p. 774) Kirgis found that the Keetoowahs were deeply split into at least factions of which the Keetoowah Society, Inc. was only one, incapable alone representing or of governing all the other factions. The Frederic L. Kirgis Keetoowah Society, Inc., Opinion, 29 July 1937, was a Memorandum to the Commissioner of Indian Affairs from the Department of the Interior. In a determination for the Commissioner dated 24 April 1944, Assistant Commissioner of Indian Affairs, Tribal Relations Branch, D'Arcy McNickle revisited the Solicitor's advice and systematically tore it apart. By 1944, then, the Department not only had repudiated the Kirgis Opinion, the Department had decided to make the Solicitor rewrite it in light of the later fact discoveries, or to get Congress to pass a simple bill clarifying the Band's status. The 1946 Act suggests the plan of action Acting Secretary Fortas chose. Obviously, the Department decided that if the Solicitor and their own in-house anthropologist were too indolent and incompetent to check their facts, there was no use bothering with them. Charles Wisdom, an ethnographer and ethnohistorian, conducted field studies and submitted findings to the Department of the Interior. There is little in his narrative to indicate that he wrote the narrative with the informed consent or cooperation of the various groups. Later correspondence suggests that he never submitted the manuscript to the Keetoowah factions for review. On the contrary, his narrative shows he consistently relied, perhaps far too heavily for the sake of his own objectivity, on the observations of Levi Gritts, Vice-Chief of the Keetoowah Society, Inc.(See, generally, Wisdom, 14: I) In his "Keetoowah -- Organization as a Band" Solicitor's Opinion of 1937, Frederic L.. Kirgis referred to the Wisdom study in passing, but largely blurred the fact issues, relying entirely and uncritically on the Wisdom study to conclude that the Keetoowah Society, Inc., was supposedly the Keetoowah "Band."[Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs: 1917-1974, Vol. I (Washington, D. C.: U. S. Department of the Interior, 1975), p. 774) Wisdom's Keetoowah study consisted almost exclusively of the observations of an extremely biased informant. Levi Gritts already was running hard, and losing badly, in his efforts to gain control over Keetoowah organization, and the document reads like a piece of campaign literature: brag, smear, and all. As a result, the Wisdom study inevitably was skewed to put the Keetoowah Society, Inc., in the best possible light, while depicting all other groups as inferior or subordinate. Ben Dwight, Organization Field Agency, made a peculiar discovery in June 1939: that the Keetoowah Society, Inc., held an 20 September 1905 Charter from the Federal Territorial Court in Tahlequah, identifying the Band as a Polity. Monahan discovered then what Kirgis had ignored: that the 1905 Charter of the Keetoowah Society, Inc., had the approval of the U. S. District Court in Tahlequah. Monahan concluded that all of the Keetoowahs might organize under its provisions, because under authority of that Charter, the Keetoowahs could apply the charter to their tribal towns, of which there remained several throughout Cherokee Nation.(Letter, 2 August 1939, A. C. Monohan, Regional Coordinator for Organization for the BIA to DAiker, Assistant Commissioner for Indian Affairs) Levi Gritts visited A. C. Monahan, Regional Coordinator for Organization for the BIA, in Oklahoma City in 1939, to evaluate the remaining alternatives. Gritts said a number of his group still wanted to reorganize under OIWA and IRA as a tribe. Though the Keetoowah Society, Inc., had a Federal charter, and though the corporation nearly had succeeded in keeping all the Keetoowah factions together in the 1920s under an Executive Council and Levi Gritts, by 1937, the Society, Inc., still did not speak for all the Keetoowah people who wanted to participate in reorganization in 1939. As the Organization Field Agents found in working with the Keetoowahs after 1937, the Society, Inc., and the "Nighthawk," or Original Keetoowah Society, were only two highly visible and distinct factions, neither of which could speak anymore for all Keetoowahs, or claim sole secular authority over the Keetoowah Indians. The membership claims of these two organizations probably were exaggerated, reflecting the shifts or dual or multiple affiliations of members through the years, while both claimed to represent all the true Keetoowah Cherokee people. The Keetoowah Society, Inc., standing alone, was not a band within the meaning of the Act, but appeared to be a political entity. The leaders of the Keetoowah Society, Inc., and the "Nighthawk" organization later insisted upon remaining independent of the UKB, because the other factions refused to hand control over either to the Keetoowah Society, Inc., or to the descendants of Redbird Smith in the "Nighthawk" organization. However, the members followed their own preferences, abandoning both organizations for the UKB. In 1939, a new coalition government of Keetoowah Indians formed under the leadership of some of the Keetoowah Society, Inc.'s, prominent members. The members were individuals who were primarily Cherokee by blood, interested in maintaining a political and cultural identity as Keetoowah Cherokee Indians, most of whom already were affiliated individually with one (or more) of the various Keetoowah factions.(*: IV) Superintendent A. M. Landman at Five Tribes Agency sent a general notice to the Keetoowahs dated 22 March 1939 (Fort Worth NARA): At the request of some members of the different Keetoowah groups, announcement is hereby made that a joint meeting of the various Keetoowah groups will be held at the Lyons Community house, . . . , Thursday and Friday, March 30 and 31, 1939. The purpose of this joint Keetoowah meeting is to hear a detailed explanation of the various provisions of the Oklahoma Indian Welfare Act and to discuss matters of common interest to all the groups. It is hoped that each Keetoowah group will send a delegation to this meeting so that full information can be carried back to the respective areas from which the delegation may come. . . . It will be necessary that each representative coming to the meeting make his own arrangements for food and staying over night. Following this meeting, the UKB called a Convention set for 9 June 1939 at Lyons Community House, to vote for or against a provisional constitution, prepared by a committee composed of Daniel Hummingbird, John Muskrat, John Flute, Wilson Hummingbird, and Ben Bird Chopper. The half-blood Dawes Commission enrolled Cherokees and their descendants aged 21 years or old were eligible to vote. The Convention was to select officers and conduct the meeting according to rules prescribed by the Committee at the Convention. On 13 June 1939, Ben Dwight, Organizational Field Agent for the Indian Service sent a "Memorandum to Mr. Monahan Re: Keetoowah Organization"(A. C. Monahan was Regional Coordinator for Organization), summarizing the Division's activities (Fort Worth NARA). This report is among the most significant documents regarding the motives, factors, and key personnel involved in the UKB reorganization: Several weeks ago, Mr. Levi Gritts came to you stating that a number of his Indian associates of the Keetoowah Society Incorporated wished to organize under the Oklahoma Indian Welfare Act so that they might obtain some of the benefits available under that legislation. You requested that I survey the situation with a view to assisting the Keetoowahs in some way regarding organization, provided that organization was feasible and possible under the Act. Both Mr. Exendine and I then interviewed members of the various Keetoowah factions and found that there was considerable sentiment among members of the different factions to get together and work in a concerted way for the benefit of the higher degree blood Cherokee Indians who constitute a portion of the original Keetoowah organization. As a consequence of this preliminary survey and at the request of a number of the members of the different factions, Mr. Landman issued a notice of a meting at which representatives of the different factions would meet for the purpose of hearing a general explanation of the provisions of the Oklahoma Indian Welfare Act. As you remember, both you and Mr. Landman were present at that meeting and made general talks to the assembly, explaining that it was not altogether certain the Keetoowahs could as yet be considered a 'recognized band' within the meaning of the Act. However, it was further stated that it was desirable upon the part of all parties interested to assist in every way possible such group or groups of people to avail themselves of the benefits provided for in the Oklahoma Act as well as other sources. On the second day of this first general meeting [22 March 1939], I went over in detail all of the provisions of the Act. The delegates were desirous of attempting to form an organization composed of Cherokee Indians of one-half or more degree Cherokee Indian blood who, in their judgment, constitute the Cherokee Keetoowahs. As you had previously done, I cautioned the delegates not to move too fast and, as a result of this meeting, the delegates passed a resolution requesting that Mr. Exendine and I continue and explanation of the provisions of the Act in the various fullblood communities of the Cherokee and that a second meeting of delegates from the different communities be held at the Lyons Community House for the purpose of resurveying the situation and sentiment among the Indians concerned. Accordingly, Mr. Exendine and I complied with their request. The Organization Agents explained that while the U. S. might not recognized even the united group without congressional action, there was a chance now, due to the BIA's recent understanding that there was an existing Federal Charter. The assembly hired Ben Dwight as their Special Legal Counsel. At the second general meeting, on 9 June 1939, the assembly concluded that a provisions organization should be set up through which it would be possible to crystalize the opinion of the Indians concerned regarding future activity. On 9 June 1939, the Constitutional Committee's provisional constitution was adopted at a membership meeting called in accord with the authorizing resolution, and the terms of the provisions of the constitution itself. Under a provision of this Constitution, the assembly appointed a provisional council of 27, and set a meeting for 23 June 1939 to organize the Council and appoint a Chief and other executive officers, to hold office until the first Monday in August, on which day an election was to be held under the provisions of the constitution for the members of the Council and the Officers. A. C. Monahan believed that the Keetoowahs could use the existing Keetoowah Charter as a model, in principle, of reorganization as a Band(Memorandum, 13 June 1939, Ben Dwight, Organizational Field Agent for the Indian Service to Regional Coordinator Monahan Re: Keetoowah Organization, at Fort Worth NARA; see also Memorandum, 2 August 1939, A. C. Monahan, Regional Coordinator, Organization, Five Civilized Tribes, to Daiker, Assistant to Indian Commissioner, *: IV) That election was not held, but the appointed Council had the authority to remain in office until they did have a regular or special election to fill unexpired terms, between 1939 and 1941. Dwight's conclusions clearly establish that the UKB organization effort was a product of the various factions of the Keetoowah Indians, not a general Cherokee organization like the Cherokees by Blood groups, none of which constituted a polity. The Keetoowah Band decidedly was not a revitalization movement including all the former Cherokee Nation. The Principal Chief of Cherokee Nation was not a participant in the proceedings, nor was any agent or former agent of Cherokee Nation or Tribe, itself. Dwight wrote: Unquestionably, the organizational movement has been constantly gaining ground in all the various factions although not all of the leaders have consented to participate in the movement. However, it appears that the rank and file of the various Keetoowah factional memberships are in favor of a united Keetoowah organization. I am advised by those upon whom I can rely that a membership of probably five or six thousand high degree Cherokee Keetoowah Indians will signify their intention to be members of the proposed United Keetoowah organization. I should advise you that caution has constantly been taken to make it clear that the Washington Office does not see fit as yet to consider the Keetoowahs or any faction thereof as a 'recognized band'. The Indians, leading in the movement, however, are anxious to re-establish their united Keetoowah organization for general purposes as well as in the hopes that the organization can and will be recognized under the provisions of the Act. Frankly, if and when the provisional organization develops into a reunited Keetoowah organization wherein a majority of the higher degree blood Cherokee Indians participate as members, I believe that it would be highly advisable to recognize the organization as a band and permit them to organize and incorporate under the Act. Without discussing the legal angle of this situation at this time, I am of the opinion that the history of the Keetoowahs will warrant recognition under the Act. Even though there may have been no acts of Congress or of the Bureau in recent years which recognizes this group of people as a band, it seems to me that some such act could be done at this time in order to meet that requirement, especially if the group resolves itself into one which would simplify and expedite the administration of services to Indians for whom it appears that the United States government recognizes a distinct and definite responsibility. If, in the opinion of the Legal Division of the Washington Office, it is held that such an organization does not constitute a 'recognized band' and yet the Washington Office is of the opinion that the organization constitutes a highly desirable one, I would recommend that appropriate legislation be initiated in the Congress which will place this group upon a 'recognized band' status. These observations on my part are predicated upon favorable developments which I anticipate will take place within the next few weeks regarding the re-establishment, reuniting and building up of the Keetoowahs into a virile, organized set-up.(Memorandum, 13 June 1939, Ben Dwight, Organizational Field Agent for the Indian Service to Regional Coordinator A. C. Monahan Re: Keetoowah Organization, at Fort Worth NARA) The BIA Organization staff continued to work with the Band as they adopted a proposed constitution and roll between 1939 and 1942. The Band undertook this organization effort under the administration of Chief/Reverend John Hitcher (1939-1946) and completed it under that of his successor, Rev. Jim Pickup (1946-1954, 1956-1957, 1960-1967). The Keetoowahs wanted to exclude freedmen and intermarried whites. Collier asked the Solicitor for an opinion, who responded that the Cherokee Tribe continued to own any remaining land or tribal assests, and that those assets would be excluded from any new organization; therefore, the intermarried whites and freedmen would lose no rights in their exclusion.[MEMORANDUM TO INDIAN ORGANIZATION, n. d. 1939, from Interior Solicitor to Assistant Commissioner Daiker, Indian Organization; see 12: IV] The UKB adopted the first UKB Constitution at a Convention at Lyons Community House, eight miles south of Stillwell, Oklahoma, on 9 June 1939.(*: IV) The members of the UKB Constitutional Committee were Daniel Hummingbird, John Muskrat, John Flute, Wilson Hummingbird and Ben Bird Chopper. Under the name United Kee-too-wah Cherokee Band of Indians in Oklahoma, a name they later amended, the Tribe convened annual elections of officers under that provisional Constitution and By-laws during the 1940s, and used that Constitution as the source of the current Constitution and By-laws.(*: IV) Apparently, the Department of the Interior did not recognize this Constitution and Charter as "approved" for the purposes of fulfilling the requirement of the "Rules and Regulations for the Organization of the Indian Tribes of Oklahoma under section 3 of the Oklahoma Welfare Act (Pub. No. 816-74th Congress) As Approved by the Secretary of the Interior," current in 1939. The BIA could not approve any UKB organic documents until after the 1946 Act. Under the OIWA Rules, the Secretary provided that: The Department will cooperate with and offer its advice and assistance to any authorized tribal council or representative committee of a tribe of Indians residing in Oklahoma in the drafting of a constitution, by-laws and charter. Said constitution, by-laws, and charter may be drafted simultaneously, in order that the respective provisions thereof may be harmoniously adjusted to one another, and the organization of the tribe be treated as one process. This procedure may be followed in view of the fact that under the Oklahoma Welfare Act most of the powers which the tribe may exercise are to be set forth in the charter, rather than in the constitution and by-laws, as is the case under the Indian Reorganization Act. The constitution, including the by-laws, and the charter, however, will be voted on in two separate elections. No tribe may receive a charter of incorporation until it is organized under an approved constitution and by-laws.[Emphasis added] The United Kee-too-wah Cherokee Band Council directed the General Election Board to issue orders for a special election of general officers and district council members, to be held on 5 August 1940. The officers and council members elected at that time were to serve until the 1941 regular election, or until successors were elected and installed. The Council directed the election of the four executive officers, Chief, Assistant Chief, Secretary and Treasurer, and designated voting places and the number of council members representing the respective districts. Goingsnake and Tahlequah were to have five representatives each, while others had one to four representatives each. The smallest District, Canadian, had only one representative, and remains the district with the smallest resident UKB population today, largely due to the effects of the Civil War and the building of dams.(Rules for United Kee-too-wah Cherokee Band Special Election on August 5, 1940, at Fort Worth NARA; Rev. Jim Pickup delivered this order to Mrs. Hicks of the Muskogee Agency) On 25 October 1940, the UKB Council passed a Resolution "Relating to the proposed construction of a general headquarters for the restricted Cherokee Indians," to be "centrally located, for use in connection with strictly Indian matters and those in connection with the various services of the United States Indian Bureau."(See also, Letter, 25 October 1940, Chief John Hitcher to Superintendent A. M. Landman, Five Civilized Tribes Agency, Muskogee, at Fort Worth NARA) The UKB requested the assistance of the U. S. Indian Services "to secure the funds with which to purchase the necessary land and construct thereon buildings necessary for a general headquarters to be used for and on behalf of the restricted Cherokee Indians in the Cherokee Nation." The plan was intended to benefit some 8,000 to 10,000 Cherokees, by establishing a place for meetings and activities, to house Indian service and general Indian organization meetings, and to establish offices for the Indian Service. The facilities were supposed to house arts and crafts, sewing, home demonstration, cooperative activities, general education and welfare, and the like. The estimated cost of constructing a native stone building 40' by 80' with a 14 foot ceiling, 16 inch walls, shingled gabled roof, and folding door partition was about $10,000. The Council delegated authority to the Chief to negotiate the purchase of lands and construction, and set out three choices of locations: the 80 acre restricted property of Jim Chair in Cedar Tree, Cherokee County, 9 miles east of Tahlequah on HWY 51, offered for $1,500; the 55 acre Edward Ewen property at Biddings Springs, Adair County, about 10 miles west of Stillwell and 15 miles east of Tahlequah between new and old HWY 51, already improved with seven room house, a barn and water mill, owned by a non-Indian ready to sell for $4,500; and the 40 acres of a non-Indian, W. L. Davis at Moody Springs, 10 miles north of Tahlequah in Cherokee County, worth $2,000, equipped with a house and barn. Significantly, these were not strongholds of the "Nighthawks" or of any other particular faction. Chief (Rev.) John Hitcher, Assistant Chief Sam O'Field, Secretary Nelson Toolate and Treasurer Richard Fourkiller signed the resolution. Councilmen, with their respective districts indicated, were: Richard Henson (Cooweeskoowee); John Cochran (Cooweeskoowee); Ned Dreadfulwater (Tahlequah); George Flute (Sequoyah); Ellis Sanders (Flint); Eli Wilson (Tahlequah); Jackson Livers (Flint); Taylor Glass (Flint); Gus Hummingbird (Goingsnake); Nick Davis (Delaware); Jack Wolfe (Flint); James L. Chair (Tahlequah); Jim Davis; Ben Birdchopper (Saline); Looney Bark; William Foder (Tahlequah); Ned Crawford (Illinois); Adam Bean (Goingsnake); Charlie Fourkiller (Goingsnake); George Hummingbird (Goingsnake); Levi Hogner (Goingsnake); and Joe O'Field (Delaware). Chief John Hitcher offered a brief history of the UKB as of 1940 in the memorandum accompany the UKB building proposal: Approximately two years ago, at the instance of some restricted Cherokee Indians, representatives of the United States Indian Office made a general survey of organization possibilities among this group of Indians. At that time, it was not clear that an organization could be consummated under the provisions of the Oklahoma Indian Welfare Act nor was there any assurance that restricted Indians themselves desired such an organization. However, as discussion meetings were held, interests along these lines developed for further consideration of this matter. As a result of a general mass meeting, called by Superintendent Landman and attended by Regional Coordinator Monahan, a constitutional committee was appointed to draw up a provisional constitution and effect a provisional organization. Accordingly, such a provisional organization was set up and continuous consideration has been given to the interest and welfare of the restricted Indians and the possibilities of advancement through organization. Under provisions of the constitution that was ratified by the restricted Indians (all of them having an opportunity to participate in this move) general officers and 27 councilmen representing all local units of the nine Cherokee districts covering the entire Cherokee Nation were duly elected at a special election on August 5, 1940 of The United Keetoowah Cherokee Band of Indians in Oklahoma. No attempt has been made to overwhelm the traditions, customs, ceremonies, etc., of the so-called Keetoowah factions that have developed in some degree in recent years, but a successful attempt has been made to bring into the present organization members of those various factions for the purpose of marshalling the efforts of the restricted Indians into a business organization which could function for Cherokee of the one-half to fullblood. Under the provisions of the constitution, any Cherokee Indian of one-half or more degree Cherokees blood is eligible for membership and can participate in the activities of the organization. It can well be stated that a great majority of these restricted Cherokee Indians are desirous of taking part in this movement and that actually about 4,000 have made formal written application for membership. We understand that this organization is not an incorporated band under the provisions of the Oklahoma Indian Welfare Act, but we are of the opinion that we do have the right to make such recommendations to the Federal Government and we desire to make on behalf of the restricted Cherokee Indians. Organization Field Agent Ben Dwight forwarded this letter with his own cover letter to Superintendent A. M. Landman, adding his own recommendation of support, noting that many Keetoowahs had been using their own funds to fund the organization effort. Dwight observed: There are twenty fully organized communities, subsidiary units of the band organization, scattered over practically all of the fullblood Indian communities in the nine Cherokee Nation districts. I should like to add that this organizational setup of restricted Cherokee Indians provides a medium through which the Indian Service may administer more effectively and comprehensively to that group of Indians and also carry on necessary and worthwhile educational programs much more advantageously than it could without such an organization extending into all the communities wherein there live restricted Indians. It should also be observed that the settling up of this democratic organization does not preclude in any way cooperation with or administration to any group of restricted Indians that does not care to affiliate with this band. However, it may be observed that most of the members of the non- affiliated groups have signified their wish to participate in the United Keetoowah Cherokee Band organization. On 27 November 1940, Superintendent Dwight responded that no funds were available for the proposed general headquarter (at Fort Worth NARA). Organization Field Agent Dwight wrote to the Commissioner through Regional Coordinator A. C. Monahan on 11 December 1940, regarding the UKB's request for a community house, hoping that money could be made available for the UKB construction request (at Fort Worth NARA). Reiterating his earlier comments on the building project to Agent Dwight, Superintendent Landman regretfully declined to support the project, citing the $300,000 already committed to construction and development of land already involved in rehabilitation, and adding, "It has been our plan to remodel the old Fletcher place as a community center," as a meeting place, near the old Lyons Community House, near Stilwell.(Letter, 20 December 1940, Superintendent A. M. Landman, Five Civilized Tribes Agency, Muskogee, to Regional Coordinator A. C. Monahan, in Fort Worth NARA) Rev. John Hitcher died only a few months into his administration. With the Organization Staff's help, the UKB began to seek enabling legislation from Congress permitting the UKB to have a referendum on a Constitution and By-Laws under Sections 16 and 19 of the IRA, and a charter under Section 3 of the OIWA charter (at Fort Worth NARA). Dwight continued in his efforts to obtain aid for the UKB (Letter Dwight to Commissioner, 28 March 1941, Fort Worth NARA). On 20 February 1942, the UKB Council adopted a resolution in a meeting at Cedar Tree Church in Cherokee County. The Council stated that they intended in their Constitution and By-laws to organize Cherokee Indians of one-half or more Indian blood under the terms of Section 3 of the OIWA. They then would allow "Cherokee Indians of lesser degree of Indian blood to join for the purposes of securing benefits and assistance from various agencies, and for the further purpose of expediting the administration of services to the members of this band." If the U. S. declined to acknowledge the Band outright, they would seek relief from Congress. On 20 February 1942, the UKB Council authorized the appointment of a committee of three, including the Chief, to revise the 1939 constitution, transmit it to the Secretary, and ask him to convene a referendum as soon as possible. They further agreed to hold the roll open. So, while initial membership consisted mostly of Dawes enrollees (reflecting affiliation of these members with the Keetoowahs who acquiesced to the acts of the Dawes Commission), the UKB finally enrolled persons of Cherokee blood regardless of Dawes descent. [See Keetoowah Constitution, Article IV, and Resolution 2: 19 April 1949] In the meantime, the Keetoowah Society, Inc., resumed its efforts to obtain separate reorganization from the other Keetoowah groups, or the UKB, and wrote to Commissioner Zimmerman of their intent to contact Congressman Stigler and Senator Elmer Thomas for that purpose [Letter, 26 July 1944, Gabriel Tarepen to Commissioner of Indian Affairs William Zimmerman, Jr., in Central Classified Files of the BIA, Department of Interior. Box 463. Accessions 56A-588. Records for 1948-1952. Five Tribes. 010. Legislation (011.-015). File # 29941-44] The Oklahoma congressional delegation responded to the requests of the United Keetoowah Band, but not the separatist requests of the Keetoowah Society, Inc., or of any other group. In 1942, the question first arose regarding the possible role of Cherokee Nation and its Principal Chief in the UKB reorganization. It appears that on 14 February 1942, Principal Chief Jesse B. Milam of Cherokee Nation wrote to the Commissioner regarding Keetoowah reorganization. On 12 March 1942 Commissioner William Zimmerman, Jr. wrote to Principal Chief of Cherokee Nation Jesse B. Milam: It is quite true, as you state in your letter of February 14, that this Office is interested in organizing the Keetoowah groups of the Cherokee Nation. We have understood that the various factions into which the original Keetoowah Society had been divided in recent years have shown a definite inclination towards unifying and reorganizing as a single corporate body. It has been our feeling that the Oklahoma Indian Welfare Act, like the Indian Reorganization Act, was conceived of as a means of assisting Indians such as these -- that is, Indians of a relatively high degree of Indian blood, who have little if any resources, who have no access to the usual sources of credit, and who give every indication of being able to profit from community organization. The difficulty has been that under the Oklahoma Act, the Keetoowah group or groups cannot be recognized as a legal tribe. They represent only a fraction of a tribe. It has been suggested that legislation be secured which would declare that for purposes of organizing under the Oklahoma Act, the Keetoowah Society shall be recognized as a tribe. No other formula seems possible at the present time. The actual wording of such legislation, we feel, should be worked out by the Keetoowahs or their counsel. I would be interested in having an expression of your views in this matter.(Fort Worth NARA) Notice here that while the Commissioner does mention in passing the possibility of making credit available to Keetoowah members as one advantage of reorganization, he does not suggest that it is the only reason. The general sovereignty and self-determination interests in unifying the community are obviously of greater interest here to the Tribe and to the Department. Further, it seem clear here that the means to develop a revolving loan arrangement under Section 4 of OIWA already existed for Keetoowahs, and alone would have provided no adequate need or justification for legislative acknowledgment. Zimmerman referred to this letter in replying to a letter from a Cherokee, Adam Bean of Stilwell, who had written to Zimmerman about UKB reorganization (Letter, Commissioner Zimmerman to Adam Bean, 5 October 1942, in Fort Worth NARA): The Solicitor of the Department of the Interior has held that the Keetoowah group or groups could not be recognized as a band since they actually represent only a fraction of the Cherokee Tribe. We have written to your Principal Chief, J. B. Milam, suggesting the possibility of securing legislation which would recognize the Keetoowah group as a band, thereby making them eligible for organization under the Oklahoma Indian Welfare Act.(Fort Worth NARA) Finally, the UKB agreed to seek enabling legislation to allow their reorganization in the event the Secretary declined their request for a referendum under OIWA and IRA. On 2 October 1942, the UKB Council transmitted the Resolution of the United Keetoowah Cherokee Band of Indians in Oklahoma dated 20 February 1942, with the revised Constitution, to Superintendent Landman, for forwarding to the Commissioner and Secretary, with the request for support in the acknowledgment and reorganization effort. At that date, the enrolled membership was 3,687. In 1942, BIA Organization Field Agent A. A. Exendine strongly recommended that the Commissioner allow the United Keetoowah Band in Oklahoma to form a Charter under Section 3 of the Oklahoma Indian Welfare Act, so that the Band would be "considered as a recognized Band under the Oklahoma Indian Welfare Act and a referendum be authorized by the Secretary of the Interior on their proposed Constitution; and, if that cannot be done, that appropriate legislation be initiated whereby such recognition may be affected based on the following:" the attitude upon the part of these Indians; their determination to put themselves in a position to assume responsibility for their own welfare; the necessity of doing all that can be done for a group of Indians who are in need of all possible assistance that can be afforded them in the advancement of a comprehensive socioeconomic program; the efforts that have been made by both the Indians and personnel of the United States Indian Service; and for reasons of administrative proficiency.(Letter, 26 October 1942; *: IV) Exendine forwarded to Acting Commissioner Zimmerman, care of the Area Director, a set of draft Constitutions and By-laws of the "United Keetoowah Cherokee Band of Indians in Oklahoma," with a resolution of the Band requesting recognition under OIWA or the enactment of appropriate legislation requesting such recognition, with a letter of transmittal through the agency (through Supt. Landman and the Organization Division) to the Commissioner. The Band had operated under the Constitution for three and one-half years. One revision that the Indian Affairs Office wanted to make in the Tribe's constitution was the substitution of the word "Cherokee" for "Keetoowah" in the Band's name, to read, "The United Cherokee Band of Indians in Oklahoma." Exendine reported that the intent of this change was: to circumvent probably misunderstandings that might arise hereafter as regards the various ceremonies of the different factions of the "Keetoowahs." Although the name-change has been made as indicated above, the Band has no intention of changing their idea of continuing organizational activities in which members of each of the factions of the "Keetoowahs" will be eligible for membership in the United Cherokee Band of Indians in Oklahoma. And, the primary basis underlying this organizational activity is to set up an organization for and on behalf of Cherokee Indians of one-half or more degree Cherokee Indian blood with provisions that will make it possible for Cherokee Indians of a lessor degree of Indian blood to become members--that is, to include the restricted Cherokees or such others that from time to time may be considered as Indians for whom the Federal Government recognizes a service or property- protective responsibility. The purpose was to achieve acknowledgment for an entity inclusive of all its factions: the Band has no intention of changing their idea of continuing organizational activities in which members of each of the factions of the Keetoowahs will be eligible for membership in the United Cherokee Band of Indians in Oklahoma. And, the primary basis underlying this organizational activity is to set up an organization for and on behalf of Cherokee Indians of one-half or more degree Cherokee Indian blood with provisions that will make it possible for Cherokee Indians of lesser degree of Indian blood to become members--that is, to include the restricted Cherokees or such others that from time to time may be considered as Indians for whom the Federal Government recognizes a service or property- protective responsibility.[Emphasis added; *: IV. The Cherokee Nation of Oklahoma Constitution, at "Article III -- Membership," today limits registration to Dawes enrollees or their descendants, including non-Cherokees and non-Indians of any or no Indian blood degree, but exclusive of freedmen and their descendants] As it was, on 16 January 1943, Organization Field Agent Ben Dwight, now acting as Special Attorney for the Keetoowahs in this matter (Dwight became the UKB's legal adviser on 29 June 1940), found it necessary to write to Superintendent Landman at Muskogee, requesting that Landman forward the UKB's proposed organic documents and other materials relating to their request for acknowledgment for organizational purposes to the Chicago Office of the Indian Service without delay, so that Dwight could compose a support brief. Agent A. A. Exendine sent a similar letter on 18 February 1943 stating the same request (See Fort Worth NARA) On 22 February 1943, Landman complied, sending the materials with a cover letter to Commissioner Zimmerman in Chicago.(Fort Worth NARA) The Department of Interior's internal debate over the Keetoowah raged on for several years. Finally, in April 1944, Assistant Commissioner D'Arcy McNickle, Tribal Relations Branch, harpooned the Kirgis Opinion and scuttled it once and for all. His comments justifying Acting Secretary Abe Fortas's request for a congressional override of the Solicitor's Opinion are worth recalling in their entirety, particularly because so many latter-day authorities have neglected them so shabbily. McNickle determined that: In 1937 the Solicitor's Office ruled that the Keetoowah Society of Cherokee Indians was not a band for the purpose of organizing under the Oklahoma Indian Welfare Act. The opinion characterized the organization as "a secret society representing the most conservative portion of the Cherokee Indians", and having for its objective in the beginning, opposition to slavery, and subsequently opposition to allotment. The Solicitor's decision was based largely on information obtained from a report compiled by Charles Wisdom, an anthropologist attached to the Indian Office. Mr. Wisdom in examining into Cherokee history made these conclusions: (1) That while the name Keetoowah was derived from an ancient town, there is no historical connection between the society and that original political group; (2) That there exists only a cultural and mystical relationship between the two. Using the foregoing information the Solicitor, in rejecting the Keetoowah Society's request for recognition as a band, held that a band is a political body, having the functions and powers of government. Likewise, it must possess a common leadership, concerted action and a well-defined membership; moreover, the membership is perpetuated primarily by birth, marriage and adoption. The opinion drew a distinction between the Keetoowah Society and the Creek towns, holding that the latter were independent units capable of political action and particularly the initiation of hostile proceedings; not only were they the functioning political subdivisions of the Creek Confederacy or Nation, but they were the original independent units of government of the Creek Nation. The Solicitor went on to say that "neither historically or actually" was the Keetoowah group a governing unit of the Cherokee Nation but rather it was a society of citizens within the Nation with common beliefs and aspirations. This argument of the Solicitor's Office accepts as fact a fiction which, for its own reasons, the United States Government has insisted on treating as a fact for more than a hundred years. There was not aboriginally a Cherokee Nation. There were among the Cherokee people a number of towns and there was an elaborate interrelationship between these towns, as there was also intertribal relationships as between the Cherokees and the various tribes in the Tennessee valley and along the Eastern Seaboard. The Cherokee people were located in four general areas, referred to as the Lower Settlements, the Valley Settlements, the Middle Settlements and the Overhill Settlements. In a recent study of the Cherokee s published in Bulletin 133 of the Smithsonian Institution by Dr. William Harlen Gilbert, Jr. (1943), the following passage is found: The central area of the Cherokees, comprising the Kituhwa (Middle) and the Valley Settlements, was the heart of the tribe. Later, during the Revolutionary course [and] after the removal in 1838 only fragments of the people remained. Quoting again from Gilbert: By far the largest and most important of the remnantal Cherokee groups after the removal were those clustering around the juncture of The Ocona and Tuckaseegee Rivers near the old settlement of Kituhwa in the heart of the old Middle Settlements. Moreover, the term "Kituhwa" (Keetoowah) is used to designate one of the two dialects still spoken in the Eastern Cherokee area. The foregoing information lends considerable color to the contention of Mr. Boudinot, namely, that the term "Cherokee" never should have been taken as a tribal name; that in actuality "Cherokee" is derived from "Tsalagi" which may or may not have been used by the Cherokees themselves -- Boudinot claims that it was a place name of minor importance, not properly a tribal designation. Mooney's article in the American Handbook observes that the people also called themselves "Ani-Kituhwagi" meaning "People of Kituhwa", which he describes as "one of their most important ancient settlements". Mooney also points out that the Delawares and other tribes called them "Kittuwa". At the very least, then, the term "Keetoowah" was originally the name of a Cherokee town, perhaps the most important of the ancient towns; and in its broadest implication it may be that the term is a more appropriate cognomen for the entire people. Taking it at its least implication, Keetoowah is, historically at least, on a par with the Creek towns in that it was originally an independent unit of government. Hence the Solicitor is wrong in saying that Keetoowah was not historically a governing unit. Next it remains to explore whether the original significance of Keetoowah, as being somehow associated with the heart and the center of the Cherokee people, went with the people when they were expelled from the original homeland. The Solicitor assumes that the contrary was true: that the term was only resurrected in the stressful days before the Civil War when the Cherokee people found themselves split on the slavery issue, and that it was again invoked when the fact of tribal dissolution approached. As I point out above, the Solicitor characterizes it as a secret society. The question deserves more research than it has had up to now. Emmett Starr in the "History of the Cherokee Indians" (quoted by Wisdom), presents facts which indicate that Keetoowah was a living thing and that it went with the people. Writing about Red Bird Smith, who was the moving spirit in the founding of the Night Hawk Branch of the Keetoowah organization, Starr points out that Red Bird was born near Fort Smith, Arkansas, in 1859, while his parents were enroute to Indian Territory, and that his father, Pig Red Bird (the name Smith was added by white people), was an ardent adherent of the ancient rituals and customs, which he taught to his son. Red Bird then went on to become one of the Chief expounders of the religious beliefs and moral codes of the old life. When the Keetoowahs drafted their constitution in 1858, they did so not as a private and exclusive society, one feels, but as a group of trustees might organize in order to keep intact the property and the spiritual estate of the people facing peril. Previously, there had been no occasion for such formal organization because Cherokee laws and customs had continued to function. By 1858 many non-citizens had come into the Nation, factionalism became strong, and it was necessary to adopt measures in self-protection. The Keetoowahs even adopted a flag in the heat of the Civil War, around which they rallied support for the cause of the North. In February 1863 they abolished slavery unconditionally and forever (Mooney). In all of this that acts as a nation, certainly, not as a private, voluntary association. The record, incomplete as it is, seems clearly to indicate that the Keetoowah group, whether we call it a society, a faction, or a band, did exercise independent political action, even to the point of initiating hostile proceedings. It has been a formally organized body at least since 1858, with representative districts, and for many years it had a common leadership. The fact that the original body split into factions ought not to persuade our judgment as to the true nature of Keetoowah. At present there is in evidence a real desire on the part of all factions to reunite in a common organization. In considering the status of the Keetoowah association, one ought not to lose sight of the total history affecting the Cherokee Indians. As I pointed out earlier, the United States government insisted on treating with the Cherokee Nation when there was no such entity, and more than there ever was a Creek Nation. The pressures exerted by the United States Government resulted in producing numerous counterpressures within the Cherokee society. Those elements within the tribe who were compliant and willing to concede the demands made by the Untied States in time were recognized as comprising the corpus of the tribe; those who resisted were treated as a malcontent minority. At a most critical juncture in Cherokee history, on January 31, 1899, a general election was held for the purpose of accepting the Dawes Commission terms. The Keetoowahs, that is to say, the Indian element off the Cherokee Tribe, refused to participate and as a result their interests were defeated by 2015 votes. The membership of the group was more than sufficient to carry the election if they had mustered their full strength. From this indication we gather that at that time the Keetoowahs actually represented a majority within the tribe. The Keetoowahs themselves have never accepted the view that they are not "the people' and that they do not speak for the real interests of the ancient Cherokee world. They continue to this day to speak and act in all patience as if the decrees of the courts and the acts of the Congress had never been. But they are still puzzled at the failure of the United States to understand the simple thing they have always said, namely that Keetoowah is Cherokee and should never have been considered anything else. I propose that we bring this matter again to the attention of the Solicitor and try to get a revision of the 1937 opinion. (Position Paper on the UKB, 24 April 1944, D'Arcy McNickle) In light of this memo, it is clear that the 1946 Act that followed was not a Federal acknowledgment bill at all. As history shows, the Secretary simply abandoned the Solicitor's Opinion and promoted status clarification legislation. On 5 June 1944, McNickle met with Chief Counsel of the Indian Service, Theodore Haas, to consider revision of the 1937 Kirgis Opinion. The recommended the drafting a bill for congressional approval, recognizing the Keetoowahs under the OIWA, under the terms of section 3.(Letter, 6 June 1944, Chief Counsel Theodore H. Haas to Commissioner Zimmerman, *: IV) Gritts and Boudinot started a campaign to allow the Keetoowah Society, Inc., to organize under the OIWA.(Letters, Levi Gritts and Frank Boudinot to Congressman Stigler; and Letters, Congressman Stigler to Levi Gritts and Frank Boundinot, 6 September 1944 to 6 March 1946; Record Group 46, NARA) However, by this time, the move toward legislation was already underway, and the UKB already had a council inclusive of all Keetoowahs, even those who had differences with the old corporation. The movement, now truly representative and inclusive, was out of the hands of the old guard.(House Report 447, 79th Cong., 1st Sess., 25 April 1945) However, ironically, it was the efforts of Gritts and Boudinot in Washington that got the legislation through. Gritts ignored the new Superintendent, W. O. Roberts, at the Muskogee Agency, meeting with and writing to the Commissioner and Oklahoma delegation and their agents. Roberts never got over this snubbing. After Chief John Hitcher died in 1946, the BIA abandoned the plan to persuade the Tribe to change its name. The BIA still hoped that all Cherokee Nation descendants would be eligible to enroll in the UKB. A name change along the lines that Superintendent Landman preferred would have allowed the uninformed to assume the Tribe was only a part of Cherokee Nation. Eventually, the Band settled on the name, "United Keetoowah Band of Cherokee Indians in Oklahoma," to indicate that the Band included the various Keetoowah factions and splinter groups. The Band did not include all Cherokee descendants, and that the Band resided in Oklahoma. Certain factions and individuals, including staff at the local agency, supported a drastic change in political direction and membership in the UKB that this deceptively harmless name change would represent. Already, certain parties hoped to use the Band as a vehicle for restoration of the Cherokee Nation. The result would have been the subordination of the Band to the Cherokee Nation. However, the Tribe was fully aware of the implications of this deceptively harmless ruse, and quickly quashed it. Strangely enough, only a few years later, Five Tribes Agency Superintendent W. O. Roberts presented a report to Commissioner of Indian Affairs Zimmerman in which Roberts claimed to have reviewed all the UKB files only to conclude that he could not support the reorganization effort, and yet it seems he overlooked all the memos from Organizational Field Head Exendine, or else perhaps former Area Director really had sent everything in the office on the matter to the Chicago office in February, 1943. If Roberts ever saw the McNickle determination, or the 1946 Act and its other legislative history, he certainly concealed that knowledge.(See *: IV; W. O. Roberts to W. Zimmerman, 21 July 1947, File # 27285-1947) D'Arcy McNickle and Zimmermen knew that Roberts was dissembling, and McNickle's personal irritation at Roberts's insubordination is clear (in light of McNickle's personal knowledge of and interest in the UKB). Every aspersion Roberts cast on the Keetoowahs went right into McNickle's ear, and McNickle rode Roberts on the matter whenever he could. Superintendent Roberts appears to have opposed the UKB reorganization. He probably never became reconciled with his obligations regarding OIWA/IRA reorganization. He found that "Some effort on the part of personnel at the Five Tribes to reconcile the differences of groups resulted in the modification of the proposed contract which changed the terms of it all to the United Cherokee Band." Under that name, the Band would have become simply a vehicle for resurrecting the old Cherokee Nation, nothing more. According to the Superintendent's informants, "this proposal entirely missed the point"(Letter, January 4, 1948, Superintendent W. O. Roberts to Acting Commissioner of Indian Affairs, William Zimmerman, Jr.; *: IV) The Band's historical existence had preceded the Cherokee Nation's, and had survived the work of the Dawes Commission and congressional legislation. The Band traced the origins of its core population to the ancient Keetoowah town in North Carolina. The Keetoowahs had resisted union with Cherokee Nation before Removal, and had resisted union with the new Cherokee society through 1907. After statehood, the Keetoowahs had resisted assimilation into the mainstream of multicultural Oklahoma/Arkansaw society, had fought for the passage of IRA, and then for the OIWA, in the hope of regaining Federal acknowledgment. The Keetoowahs had survived the 1937 Kirgis Opinion's finding. They knew that the Keetoowah Society, Inc., standing alone, was unqualified to reorganize under OIWA and IRA as a the Keetoowah government. The Band did not intend to surrender to the architects of a plan to subvert their intentions, now that the Band had won congressional authorization to reorganize. Acting Commissioner Zimmerman informed both Superintendent Roberts and Secretary Warne of the Band's position. He found that the United Keetoowah Band of Cherokee Indians in Oklahoma had a very old governmental primary rule, a law by which all faithful Keetoowahs must live, and from which any constitution had to arise. Zimmerman wrote that the UKB citizens were, "persons claiming affiliation with the Keetoowah idea or philosophy"[Letter, December 8, 1947, Acting Commissioner Zimmerman to Secretary Warne; *: IV] Understandably, after their 1946 Act passed, the Keetoowahs had no desire to become an unwilling vehicle for resurrecting Cherokee Nation. After four years' work with the factions to assure unity, Exendine reported the UKB organization had 3,687 members, 40% of over age 21, representing nearly half of the Cherokees of half-degree Indian blood or more living in Cherokee Nation. THE ACT OF AUGUST 10, 1946 In 1946, the United Keetoowah Band succeeded in proving to the Department and Congressman Stigler their right to organize as a distinct entity. The 25 April 1946 Report from Congressman Jackson's Committee reported favorably on the bill, recommending passage without amendment, citing the explanation of the aims and purposes of the bill in the Secretary's letter to the Chairman and the Committee of 24 March 1945.(House Report No. 447 to accompany H. R. 341, 79th Cong., 1st Sess., 25 April 1945) Acting Secretary of Interior Abe Fortas revisited the 1937 Kirgis Opinion on the Keetoowah Society's right to reorganize under OIWA and IRA. In his testimony on H. R. 79-341, Fortas recommended that Congress pass this legislation, and that in doing so, that they set aside the earlier negative recommendation of the Solicitor's office as inconclusive. Fortas wrote: The word "Keetoowah" is closely interwoven in the fabric of Cherokee history. It was the name of the principal towns or seats of authority before the removal to Indian Territory. It also is the name applied to one of the two remaining dialects still spoken among the Eastern Band of Cherokees in North Carolina. It seems to have been the name by which a century ago, the Cherokees spoke of themselves. Reviewing Keetoowah history, including persistent efforts at maintaining governmental autonomy through periods of removal, war, and assimilation, he stated: . . . the Keetoowahs tried to prevent the allotment of the Cherokee tribal lands. At the general election of January 31, 1899, to vote on the Dawes Commission terms, they counselled their followers to abstain from voting, and as a consequence the Dawes Commission was upheld by a comparatively narrow margin. They employed attorneys to prosecute the Eastern Cherokee cases in the proceedings of 1903-1906. Fortas's most important finding dealt, of course, with the political identity of the Keetoowah Band, because without that, he could not override the Solicitor's Opinion's reasoning: When legislation was pending in Congress in 1905 to dissolve the tribal governments of the Five Civilized Tribes, the Keetoowahs applied for and received a charter of incorporation through the United States district court. The intention in this, as in all courses followed by the Keetoowah group, was that of keeping alive Cherokee institutions and the tribal entity.(Emphasis added) Fortas did not dispute with the legal findings of Kirgis, given the facts of which Kirgis was aware. Please recall, however, that Kirgis was ignorant of the existence of the Keetoowahs' Federal Charter of Incorporation when he penned his Keetoowah -- Organization as a Band Opinion. The Department had neglected the existence of that Charter until Levi Gritts brought it to the attention of Regional Coordinator for Organization A. C. Monahan in July 1939. The Charter was a key item in the Keetoowahs' argument that they could be identified as a previously-recognized polity, and Fortas knew it. He also had in hand the D'Arcy McNickle determination of 24 April 1944, recommending public repudiation and an override of the Kirgis Opinion. McNickle had said: The record, incomplete as it is, seems clearly to indicate that the Keetoowah group, whether we call it a society, a faction, or a band, did exercise independent political action, even to the point of initiating hostile proceedings. It has been a formally organized body at least since 1858, with representative districts, and for many years it had a common leadership. The fact that the original body split into factions ought not to persuade our judgment as to the true nature of Keetoowah. At present there is in evidence a real desire on the part of all factions to reunite in a common organization. In considering the status of the Keetoowah association, one ought not to lose sight of the total history affecting the Cherokee Indians. As I pointed out earlier, the United States government insisted on treating with the Cherokee Nation when there was no such entity, and more than there ever was a Creek Nation. The pressures exerted by the United States Government resulted in producing numerous counterpressures within the Cherokee society. Those elements within the tribe who were compliant and willing to concede the demands made by the Untied States in time were recognized as comprising the corpus of the tribe; those who resisted were treated as a malcontent minority. At a most critical juncture in Cherokee history, on January 31, 1899, a general election was held for the purpose of accepting the Dawes Commission terms. The Keetoowahs, that is to say, the Indian element off the Cherokee Tribe, refused to participate and as a result their interests were defeated by 2015 votes. The membership of the group was more than sufficient to carry the election if they had mustered their full strength. From this indication we gather that at that time the Keetoowahs actually represented a majority within the tribe. The Keetoowahs themselves have never accepted the view that they are not "the people' and that they do not speak for the real interests of the ancient Cherokee world. They continue to this day to speak and act in all patience as if the decrees of the courts and the acts of the Congress had never been. But they are still puzzled at the failure of the United States to understand the simple thing they have always said, namely that Keetoowah is Cherokee and should never have been considered anything else.(Position Paper on the UKB, 24 April 1944, D'Arcy McNickle) Fortas therefore recollected the Frederick Kirgis Opinion of 1937, which ruled against Keetoowah organization, and essentially dismissed it as non- controlling: In 1937 the Keetoowah Indians [requested] permission to organize under section 3 of the Oklahoma Indian Welfare Act because the society was, in effect, a recognized band of Indians residing in Oklahoma. The Department was compelled to decline this request because it seemed impossible to make a positive finding that the Keetoowah Indians were and are a tribe or band within the meaning of the Oklahoma Indian Welfare Act. It remains true that the group is composed of individuals predominantly Indian who are interested in maintaining their identity, individually and as a group, as Cherokee Indians. The organization has a recorded membership of 3,687 members, which represents nearly one- half of the Cherokees possessing one-half or more degree of Indian blood now residing in the territory known as the Cherokee Nation of Oklahoma, which is in the northeastern part of the State. The courts have regularly held that congressional recognition of a group of Indians as a band is conclusive. Legislative recognition of the Keetoowahs as a band would accordingly enable these Indians to secure any benefits, which, under the Oklahoma Indian Welfare Act, are available to other Indian bands or tribes. Fortas strongly supported the legislation, concluding: H. R. 341 has been introduced, I understand, in response to a request of the leaders of the Keetoowah Indians. Its text seems to be sufficient to permit these Indians to organize for their common welfare and to adopt a constitution and bylaws. I urge that it be enacted. The Bureau of the Budget has advised me that there is no objection to the submission of this report to your committee. [See also Senate Report No. 978 to accompany H. R. 341, 79th Cong. 2nd Sess., 21 February 1946; and House Conf. Report No. 2705 to accompany H. R. 341, 79th Cong., 2nd Sess., 30 July 1946] Congressional intentions in clarifying the sovereign and separate status of the United Keetoowah Band are clear and unambiguous on the face of the P. L. 715, 79th Cong., 2nd Sess, 10 August 1946: Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That the Keetoowah Indians of the Cherokee Nation of Oklahoma shall be recognized as a band of Indians residing in Oklahoma within the meaning of section 3 of the Act of June 26, 1936 (49 Stat. 1967). The Department agreed by its actions with the congressional determinations that in the P. L. 79-341, the Act of August 10, 1946 (60 Stat. 976, 25 U. S. C. Sec. 303), Congress provided that, unlike the Seven Clan Society, the Keetoowah Society, Inc., or the Night Hawks, the "Keetoowah Indians of the Cherokee Nation of Oklahoma shall be recognized as a band of Indians within the meaning of Section 3 of the Oklahoma Welfare Act:" Section 3 of the Oklahoma Indian Welfare Act provides that "any recognized tribe or band of Indians residing in Oklahoma shall have the right to organize for its common welfare and to adopt a constitution and by-laws, etc." Section 16 of the Indian Reorganization Act provides that "any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, etc." In both cases the intention seems clear that a tribe or band must organize as a unit, and the Solicitor has consistently held so. A slightly different situation exists with respect to the Cherokee Indians since Congress, in the Act of August 10, 1946 (60 Stat. 976), provided that the Keetoowah Indians of the Cherokee Nation of Oklahoma shall be recognized as a band of Indians within the meaning of Section 3 of the Oklahoma Welfare Act. This provision permits the Keetoowah Indians to organize apart from the Cherokee Nation as a separate band.(Emphasis added)[Letter, decision of 20 September 1949, Assistant Commissioner for Indian Affairs John H. Provinse to Houston B. Teehee, attorney for the Seven Clans Society] The main obstacle to United Keetoowah Band's organization under OIWA had been the problematic Kirgis opinion. Provinse's interpretation shows how the Band won a congressional reevaluation the Kirgis opinion in light of the union of all Keetoowah factions as a Band, and came to have the same status as the Creek Towns. Provinse's immediate purpose in setting out the Department's decision on the matter to Houston Teehee obviously was to prevent confusion in the UKB organization due to the emergence of splinter groups. At the same time, it did not prevent the possibility of the creation of a separate tribal organization of Cherokees, such as a resurrected Cherokee Nation, as long the new group was not a faction of the United Keetoowah Band.(Minutes, 16 November 1949, United Keetoowah Band of Cherokee Indians in Oklahoma; *: IV) For years following the recognition of the Eastern Band of Cherokees in 1936 and the UKB in 1946, there remained "many factions and divisions of opinion" among the "Civilized Tribes," not only among Oklahoma Cherokee descendant groups. So, in northeast Oklahoma, the Cherokee Executive Committee (under the leadership of President Truman's appointed figurehead Principal Chief), as well as the Cherokee Executive Council, the Keetoowah Society, Inc., the Knighthawk Keetoowahs, and the Eastern and Western Cherokees, coexisted uneasily with the UKB. Levi Gritts pulled the Society out of the reorganization effort when he saw he had lost control. The Seven Clans Society faction of the UKB, under the leadership of Eli Pumpkin, hired a Cherokee attorney Houston Teehee. Acting District Director Dover P. Trent advised Superintendent W. O. Roberts in 1946 that: The Seven Clan Society, the Night Hawks and certain other groups of Cherokees were originally a part of the Keetoowah Society[, Inc.,] and these separate groups were established as a result of disagreements within the Keetoowah Society[, Inc.] In our discussions with Eli Pumpkin it was suggested that it might be advantageous to the Seven Clan group and the other groups if they would federate with the Keetoowahs but they indicated that this would probably be impossible. If the act passed by Congress recognizing the Keetoowahs offers any particular advantage it appears that the only way by which the Seven Clan group and the other groups can obtain any of the benefits will be by federating with the Keetoowahs.(See Letter, October 16, 1946, Acting District Director Dover P. Trent to Supt., Five Civilized Tribes Agency, W. O. Robert, File # 43292-46) The Pumpkin faction not only wanted a charter for land management purposes, but separate organization and recognition. The reason his efforts failed was not that the UKB was a subsidiary of Cherokee Nation of Oklahoma, but because the Seven Clans Society was a part of the Keetoowah Band, or part the Cherokee Tribe, rather than an independent entity. Chief/Reverend Jim Pickup (1946-1954, 1956-1957, 1960-1967) succeeded Chief/Reverend John Hitcher (1939-1946) upon the latter's death. Pickup was the son of William and Nancy Pickup, a fullblood Keetoowah of the Wolf Clan. Pickup was born at Tahlequah on 8 January 1884, Trustee of Cherokee Nation trust properties since his appointment on 1 May 1949, Pastor of 20 Missionary Baptist churches in seven counties, the Pastor of the New Green- Leaf Indian Baptist Church eight miles southwest of Tahlequah, Chaplain of the Five Civilized Tribes Council, and Chaplain of the Cherokee Nation Executive Committee.("Pages of the Past: Necrology: The Reverend Jim Pickup/ 1884-1967," Cherokee Nation News, 23 July 1968) The changing of the guard after the War and Roosevelt's death had an immediated and chilling effect on the reorganization process. The UKB had made it, just under the wire, because Termination was coming, and their Act was almost obsolete before it could be signed. The Organization Agents were gone, and the hostile new Muskogee Agency personnel, sensing the political sea-change coming, resisted the completion of the UKB reorganization process. Collier was out in 1945, and the red-baiting had put the IRA in the deep-freeze.(Leeds 1992: 32) On 1 November 1946, the Acting Superintendent - Muskogee Area W. O. Roberts responded to a written request, from Chief/Rev. Jim Pickup of the UKB, dated 14 October 1946, asking for a Federal charter for the Keetoowah Indians: It is apparent from your letter that you do not have a clear understanding of the procedure for obtaining a charter. Regulations have been prescribed by the Secretary of the Interior whereby a list of eligible voters must be compiled and no election can be recognized as valid unless at least thirty percent of the eligible members participate in the election. He enclosed a copy of the Oklahoma Welfare Act of June 26, 1936, directing Pickup's attention to Section 3. If it is the desire of the Keetoowah Indians to organize under provisions of the Act, . . . it is suggested you begin work on preparation of a list of eligible voters and, if you can compile a correct list, this office will give such cooperation as is possible, looking to the holding of an election. The Acting Superintendent added a peculiar P. S.: The Act, mentioned in your letter, refers to the Keetoowah Indians, and hence, the various bands who compose the Keetoowahs should be included as eligible voters. In other words, the "Seven Clans", "Night Hawks", and other bands of the Keetoowahs should not organize separately.[Emphasis added](*: IV, File # 47672, in File # 43292) The Department of the Interior denied any of the Keetoowah factions, including the Keetoowah Society, the right to organize separately from the UKB in 1946, but the controversy would not die. The Seven Clans and Four Mothers groups attempted to organize and acquire land separately from Cherokee Nation in the years following the passage of the August 10, 1946, Act. On 9 December 1946, Superintendent W. O. Roberts advised Eli Pumpkin of the Seven Clans Society of the group's rights under OIWA and IRA, and cast a pall over the group's separatist aspirations: Reference is made to your visit to this office last week in connection with your desire to organize the so-called Seven Clans Society as a separate group. You will probably recall that during June, 1945, you submitted a list of the names of certain Indians who you claimed were willing to deed their restricted lands to the Seven Clans Society, but we wish to remind you that at the meeting held on July 19, 1945, some ten miles north of Proctor, at which time about 125 Indians were present, as well as Mr. Trent of the Oklahoma City office, and our Mr. Perkins, there were only two persons present who said they were willing to deed their lands to the United States in Trust for the use and benefit of the Seven Clans Society. In connection with the list of names which you submitted, and the acreage claimed to be owned by the individuals set out thereon, we found a wide discrepancy when making a check of the matter in our land section. Notwithstanding any promises which may have been made to you by Mr. Clyde W. Flynn, who was formerly employed here as Land Field Agent, we believe the probability of any funds being appropriated for the purchase of and by the new Congress which will convene in January, 1947, is extremely remote. By reason of Public Law no. 715, 95th Congress, Chapter 947, 2nd Session, approved August 10, 1946, the Kee- too-wah Indians of the Cherokee Nation, which includes the Seven Clans Society, are now recognized as a band of Indians residing in Oklahoma within the meaning of Section 3 of the Act of June 26, 1936 (Oklahoma Indian Welfare Act) and hence will take the view the Seven Clans Society is prohibited by law from organizing as a separate group. We are fully aware of the fact you claim it is the desire of numerous Indians of the Seven Clans Society to deed their lands to the United States in Trust for the use and benefit of members of said Society, but we do not believe this can be done under existing law. We think it could be done by taking deeds in the name of the United States in Trust for the Cherokee Tribe, or Kee-too-wah Indians, but we are not unmindful of the fact this feature is objectionable to you. . . . * * * In conclusion, it is our desire to cooperate with you and those Indians whom you claim to represent, but it is believed we must be realistic and take into consideration the present provisions of law, which apparently precludes the Seven Clans Society from organizing as a separate group in accordance with your proposal.(*: IV) When requests for separate reorganization continued to arise from various Keetoowah factions, on 20 September 1949, Provinse reiterated earlier findings that the factions must confederate with the United Keetoowah Band, or perhaps seek separate legislation. Provinse added that "the only way by which the Seven Clan group and the other groups can obtain any of the benefits will be by federating with the Keetoowahs"(see Letter, 16 October 1946, Acting District Director Dover P. Trent to Supt., Five Civilized Tribes Agency, W. O. Roberts, File # 43292-46) The Department's decisions regarding the rights of the UKB as an entity recognized apart from Cherokee Nation were always clear, denying the right of splinter Keetoowah groups to reorganize apart from the UKB.[See Letter, 22 December 1947; see Letter, 23 June 1949, Houston B. Teehee to Acting Commissioner of Indian Affairs William Zimmerman, Jr., requesting, to no avail, permission to organize Seven Clans Society, with an enrolled membership of 214, under OIWA, separate from United Keetoowah Band, "along the lines of the Thlopthlocco Tribal Town of Oklahoma; see Letter, 11 August 1949, Houston B. Teehee to Acting Commissioner of Indian Affairs William Zimmerman, Jr., requesting the aforementioned, to no avail; see Letter, decision of 20 September 1949, Assistant Commissioner for Indian Affairs John H. Provinse to Houston B. Teehee, attorney for the Seven Clans Society] In a Memorandum dated 14 November 1946, Associate Solicitor Felix S. Cohen advised the Commissioner of Indian Affairs on the subject, "Constitution and Bylaws for Keetoowah Cherokee Band:" The other day in Oklahoma City the Rev. Jim Pickup, on behalf of the Keetoowah Cherokee Band, asked my assistance in securing an election on a constitution and charter for this band. I undertook to transmit to the Office of Indian Affairs the present constitution and bylaws of the band, which seemed to me adequate and acceptable but for the fact that article 10 of the constitution (amendments) and article 5 of the bylaws (adoption) need to be amended so as to proved for the approval by the Secretary of the Interior of amendments and for the calling of an election by the Secretary of the Interior for the adoption of the constitution and bylaws. May I suggest that you transmit directly to Rev. Pickup an appropriate document upon which the Indians may vote. They will want to familiarize themselves with this document as soon as possible, and I can therefore see no reason for delaying the submission of such a document pending the working out of election details and proper lists of voters. I understand that a list of members has been submitted to Superintendent Roberts. Either with the submission of the revised constitution or bylaws, or as shortly thereafter as possible, there should be submitted for the scrutiny of the interested Indians a draft of a corporate charter. Associate Solicitor Cohen requested copies of any communications in this matter.(See File 47672). Appended to Cohen's letter was a form: APPLICATION FOR MEMBERSHIP UNITED KEETOOWAH CHEROKEE BAND OF INDIANS OF OKLAHOMA I do hereby apply for membership in the United Keetoowah Cherokee Band of Indians of Oklahoma. My name, address, age, roll number, degree of blood, etc. , are as follows: Name_________________________________ Address_________________ Age____________ Degree of blood______ Roll Number_____________ Roll number of parent________________ Name and ages of wife & children______________________________ Date______________, 1940. ________________________________ Signature of Applicant. Recommended by:_____________________________________ Councilman for:_____________________________________ District. This form apparently was the recommended form for the UKB's enrollment applications, upon which the UKB base enrollees' cards relied. The slow reorganization process of the UKB began causing problems for all concerned. On 18 December 1946, the Accounting and Bookkeeping Division at the GAO inquired of the Department of the Interior whether the Department intended to do anything about the UKB's accounts: Public Law 715, . . . relating in part to the status of the Keetoowah Indians of the Cherokee Nation of Oklahoma, provides that they shall be recognized as a band of Indians residing in Oklahoma within the meaning of [the OIWA]. In this connection, it is understood that upon completion of the necessary requirements, and the issuance of a charter by the Secretary of the Interior, such band will attain a corporate identity sufficient to participate in loans from the revolving credit fund and to enjoy any other rights or privileges secured to an organized Indian tribe under [the IRA]. Generally, upon the action of Congress on matters of this kind, your office has requested, and this office has prescribed separate tribal accounts in order to control credits and expenditures of funds identifiable to the particular band or tribe. However, in this case no request has been received and, in view of the lapse of time since the enactment of the statute, question arises as to whether segregation of the funds of the Keetoowah Indians is contemplated. In the event of your affirmative reply, information should be furnished as to the balance identifiable as funds of these Indians, whereupon action will be instituted to establish Keetoowah moneys in accounts identified with such Indians.(*: IV; File # 52101, AB 3. 1 DMJ) The response came from Walter V. Woehlke for the Commissioner on 24 January 1947: The recognition of this group of Indians as a band, provided in Public Law 715, involves no segregation of funds at this time. The surnames included Mountjoy, Hicks, Woelhke, and Emery. The Department was aware that the Band's reorganization could take some time. On 8 January 1947, Indian Affairs Chief Counsel Ted H. Haas notified the Department (Hicks) by teletype: CONGRESSMAN STIGLER DESIRES TO KNOW STATUS KEETOOWAH ORGANIZATION AND CONSTITUTION PLS TT THIS INFO HAAS Hicks responded 9 January, 1947: KEETOOWAH CONSTITUTION SUBMITTED BY COHEN ON BEHALF OF REVEREND PICKUP WAS DRAFTED IN NINETEEN THIRTY NINE BY DWIGHT AND EXENDINE. PROVIDES FOR SINGLE ORGANIZATION. SUGGESTIONS HAVE BEEN MADE THAT CONFEDERATED ORGANIZATION WOULD BETTER SERVE NEEDS OF KEETOOWAHS. ONE CONSTITUTION AND ONE CHARTER FOR KEETOOWAH BAND CONTAINING PROVISION WHEREBY EACH CLAN ORGANIZATION IS GRANTED SEPARATE SUBCHARTER. LETTER TO THIS EFFECT HAS BEEN DRAFTED TO SUPERINTENDENT ROBERTS AND REVEREND PICKUP AWAITING ZIMMERMAN'S SIGNATURE. EOH:LEG HICKS cc: Tribal Relations.(See *: IV; File # 10144) The answer came from the desk of Assistant Commissioner William Zimmerman, Jr., on 20 January 1947, in separate letters to Five Civilized Tribes Agency Superintendent W. O. Roberts, and to Rev. Jim Pickup.(*: IV; File # 47672-46, in Washington, D. C., and Ft. Worth NARA, surnamed by Hicks, Mountjoy, Cooper and Haas) Zimmerman recalled the 1946 Act, "recognizing the Keetoowahs as a band within the meaning of Section 3 of the Oklahoma Indian Welfare Act, thereby making them eligible for organization under that Act." He continued: The proposed constitution submitted to this Office by Associate Solicitor Cohen on behalf of Reverend Pickup was one that was drafted in 1939 with the assistance of Mr. Ben Dwight and Mr. A. A. Exendine who were Organization Field Agents. At that time it was proposed that the Keetoowahs would be organized as a single body. However, in reviewing the files I find that the Keetoowah Society is divided in to approximately six separate organizations, each operating independently of the other. In view of this, we are wondering if a confederated organization would not serve the needs of the Keetoowahs better than a single organization. There could be one Constitution and Bylaws and one Charter for the Keetoowah Band containing a provision whereby each sub-organization in the band could be granted a separate sub-charter. In the Oklahoma tribal organizations most of the powers are contained in the charter. Therefore, a confederated organization should work satisfactorily among the different independent organizations within the Keetoowah Band. Since the Tribal Relations Unit has no representative in Oklahoma, most of the preliminary drafting of the constitution and charter and the subcharters will have to be done in this Office. We should like to have your views as to the type of organization which you think will best fit the needs of the Keetoowah Band. Also, we should like to know the names of each of the separate organizations within the Keetoowah Band and approximately the total membership in each organization. Is our information correct that each of these organizations are active and independent to a large degree of each other? On what matters do the groups act together? In other words, what are the present functions of the Keetoowah Society? On receipt of this information we shall formulate a proposed constitution which may be discussed at meetings of the various Keetoowah groups and may be revised to meet the needs of the band. In his letter on the same matter to Rev. Jim Pickup, Zimmerman referred to the draft 1939 Keetoowah Constitution. Observing that "at that time it was proposed that the Keetoowahs would be organized as a single unit," Zimmerman said: Since that date some of the groups within the Keetoowah Band have indicated that they desire to organize apart from the other groups. The Act approved on August 10, 1946, which recognizes the Keetoowahs as a band within the meaning of Section 3 of the Oklahoma Indian Welfare Act does not make provision for each group within the Band to organize independently of the others. Therefore, Zimmerman concluded: [W]e are giving consideration to the formulation of a proposed constitution and a charter for the Keetoowah Band with a special provision whereby the separate organizations within the Band could each be granted a separate charter. When such a constitution and charter are formulated, representatives from the Five Civilized Tribes Agency will meet with the members of the Keetoowah Band and discuss the proposed documents. The constitution and charter can then be revised to include provisions which will fit the needs of the Band. In the meantime, we should like to have you present your views on the proposal to organize the Keetoowah Band as a body of independent organizations. Pickup responded to Zimmerman in a letter of 12 February 1947 as Chief of the United Keetoowah Cherokee Band of Indians in Oklahoma (See *: IV): We were organized on June 9th, 1939, as in a general Organization of all the Cherokee Indians wethere [sic] as groups or bands or clan. This was headed in that manner way, and it was agreeable, and we are not Partial with others from this Organization, as establitish [sic] following Constitution and By-laws of the United Keetoowah Cherokee Band of Indians, we believe we are entitle [sic] to a charter. This Organization is an effort to bring all Indians together for the purpose of enlightening the public, preserving Indians' cultural values, seeking an equitable adjustment of tribal affairs, securing and preserving their rights under treaties with the United States, and streamlining with the Indians Affairs, Better Educational Advantages and protections of Indians in their land rights, and this is what we advocate, and Better farming and Better livestock raising, and better homes. [Emphasis added. Pickup sent a second such Letter to the Commissioner on 3 June 1947; in Fort Worth NARA] The UKB is the Tribe Congress recognizes as the umbrella organization for all the other Keetoowah groups whose members are eligible to enroll with the UKB in 1946. In view of this, the members of Cherokee Nation of Oklahoma who are enrolled in the UKB are eligible to establish a daughter organization under the UKB Charter. [See UKB Charter, 3 October 1950, Article 3. (d), (f), (o), (u)]. However, Cherokee Nation of Oklahoma, as currently acknowledged, is not the umbrella organization for the UKB. Cherokee Nation of Oklahoma's 1975 Constitution, at "Article XIV. Clans," says: Nothing in this Constitution shall be construed to prohibit the right of any Cherokee to belong to a recognized clan or organization in the Cherokee Nation. However, CNO cannot purport to charter such organizations as a tribe reorganized under OIWA and IRA, as the UKB is authorized to do, because these clans and societies are under the aegis of the UKB, not the CNO, and because CNO it is not reorganized under those statutes. On 11 June 1947, Congressman William Stigler wrote to Assistant Commissioner of Indian Affairs John Provinse regarding the failure of the UKB to receive a charter "which was approved under an Act of Congress which passed last year." He understood that a charter had been submitted for the approval of the Indian Affairs Office, but with no results. He requested that Provinse investigate and expedite the matter.(See *: IV; File # 22631) Provinse obliged Stigler on a Letter dated 12 June 1947, with assurances that he was referring the letter to the Chicago Office, "with the request that Stigler be informed promptly as to the status of the proposed charter."(See *: IV) On 20 June 1947, Acting Commissioner of Indian Affairs William Zimmerman, Jr. informed Congressman Stigler of his recent correspondence with Five Civilized Tribes Agency Superintendent W. O. Roberts and Rev. Jim Pickup regarding the plans to resolve the charter issue by allowing the UKB to create daughter organizations composed of the various subordinate Keetoowah groups. Zimmerman referred to the subordinate groups as "different independent clan organizations within the Keetoowah Band," whose members also had UKB membership. Stigler replied on 26 June 1947 to Zimmerman's 20 June 1947 letter, asking that Zimmerman inform him of developments.(See *: IV; File 24482) Zimmerman also wrote to W. O. Roberts on 20 June 1947, recalling the Office's 20 January 1947 request for Roberts's views on tribal organization of the UKB, the present function of the Keetoowah Society, and the total membership in the respective organizations, to allow the formulation of a UKB Constitution.(See *: IV; File # 22631-47 in Washington, D. C. and in Ft. Worth NARA) On 21 July 1947, Superintendent W. O. Roberts, in obvious frustration, tardily respond to Commissioner Zimmerman's request for information concerning the UKB. It was clear Roberts never had liked the idea of UKB reorganization, and that he favored working with Principal Chief Milam of Cherokee Nation. Roberts claimed, "While we are not closing the issue of whether to organize a 'Keetoowah' group, we believe that it is pertinent to the situation to use caution in being responsible for any measure as different [sic!] as Mr. Pumpkin would wish."(See *: IV; File # 27285-1947) Elsewhere, Roberts added, "Mr. Pumpkin's suggestion properly interpreted simply means that he wants to Government to take care of the group which is with him." Now that the UKB was not going to be the vehicle for reviving Cherokee Nation, Roberts clearly was opposed to the reorganization of the Keetoowah Band, and did not attempt to disguise his essential hostility to what he viewed as the Band's "communistic" aspirations. Referring to the United Keetoowah Band Chief as David Pickup, Roberts concluded that the UKB proper, already organized under their 1939 constitution, was: less communistic but no [more] practical. His effort (he is an ordained minister of the Gospel) seems to be that, if he could collect into a common body certain Indians who are followers of his, they could have a perfect Christian body associated together in the fellowship of religious influence, that they would own their land, work out their economic salvation something like the Mennonites in the Dakotas. No one, who is fully cognizant of what this would mean, would wish to impose this on even a segment of the Cherokee people. Roberts purported to have reviewed all pertinent files with care, and concluded, "No where in our files is there any information as to just who are the various bands of Cherokees which qualify as members of the so- called 'United Keetoowah' Indians." Roberts was unaware of the Wisdom study of the Keetoowahs and ignorant of the legislative intent behind the 1946 Act, or he was dissembling. His other correspondence suggests he had done sloppy research up to this time. See, for example, his comment to Rev. Jim Pickup of 15 December 1947 (Letter, 15 December 1947, Superintendent W. O. Roberts to Rev. Jim Pickup, in Fort Worth NARA): From the correspondence in this office, I am inclined to believe that there are differences between the Keetoowah Band and the Cherokee Tribe, that they are not one and the same. The correspondence also makes reference to a Nighthawk group or band. Here, Roberts admitted to Pickup that the Agency retained a body of correspondence in his office that led Roberts to these conclusions about the UKB; yet, in his communications with the Commissioner, Roberts continued to be somewhat at a loss for records regarding UKB organization (*: IV; Letter, Superintendent Roberts to Commissioner Zimmerman, 11 December 1947) Cherokee Nation of Oklahoma Constitution, CNCA, 2 October 1975, at Article XVI expressly supersedes the old Constitution of Cherokee Nation, enacted 6 September 1839. Even prior to the completion of the UKB's reorganization, the Cherokee Nation, though it existed, had not constitutional authority over the UKB. Roberts had found that Eli Pumpkin, Chief of the Seven Clans Society of the Cherokee Indians, did not want his group to be part of the "United Keetoowahs." Roberts was so vague in his research that on the first page he referred to the "twenty or thirty families" composing the Seven Clans, and on the next page, to "some eighteen or twenty families" composing the same group. Referring apparently his conversations with Rev. Jim Pickup, Chief of the UKB, Roberts stated, "David Pickup has several times indicated an interest in the 'Keetoowahs' but evidently his conception of the 'Keetoowah' idea is vague and not likely of any concrete expression." Making a common mistaken inference, Roberts offered, "the term 'Keetoowah' has a generic meaning applicable to anyone who was a member by affiliation or relation of a certain society in the Cherokee Tribe. The term 'Keetoowah' seems to mean literally 'Night Hawk'. "One could as appropriately conclude that the term "America" is synonymous with "National Football League," based on one's scant knowledge of American history and institutions. The 'Night Hawks' were, and are, a faction of the Keetoowah Band. In 1946, Roberts had received a memo from Trent clarifying these issues (see Letter, October 16, 1946, Acting District Director Dover P. Trent to Supt., Five Civilized Tribes Agency, to W. O. Roberts, File # 43292-46), but Roberts chose to disregard Trent's letter. Roberts compared the Keetoowahs to the Dog Soldier societies among various historical Sioux bands: NOTE: To illustrate the difference between an actual organized entity in a tribe and general one, the Minnecongou band of Sioux was a clearly knit entity in the tribe. It would be proper to say, therefore, that there was a Minnecongou band of Indians and its history has a traceable identity. The Dog Soldiers Society among the Sioux was identifiable with each band in more or less degree, but was generally applicable all over the Sioux Tribe. An individual, therefore, might have been a member of the Dog Soldier Society, but the historical significance and the concrete identity of such society would be impossible to obtain at the present time. Likewise, a Cherokee Indian might have been a "Keetoowah", that is a member of the loosely knit and generic Night Hawks, but to reassemble any such organization today would be literally impossible. Roberts's comparison of the Keetoowah people to the Dog Soldiers societies among the Sioux bands and Nation was groundless. The 1946 Act acknowledged the right of the Keetoowahs to reorganize, without allowing splinter groups the same right. D'Arcy McNickle's 1944 determination on the Band's status had won the full endorsement of Acting Secretary Fortas and Congress. Congress and the Secretary frequently have allowed single historical tribes to divide into various bands or tribes, and to be recognized as separate and autonomous entities, as in the case of the various Sioux and Chippewa bands on all their separate reservations, in different states. The Washoe Tribe of Nevada and California, while allowing autonomy to individual member Washoe colonies or villages, have combined under a single IRA Constitution and By-laws. The various Creek Towns organized under OIWA and IRA with their autonomous governments, under distinct Constitutions and By-laws, which in two cases stipulate that members of those towns may enroll as full concurrent members of the Muscogee Creek Nation, with no conflict. As Cohen (1982:6) states, "These and other subdivisions of ethnological tribes are also 'tribes' for federal, political, legal and administrative purposes." In Herring v. United States and Ute Indians, 32 Ct. Cl. 536, at p. 538 (1897), the Court of Claims ruled: A band, being the lowest and smallest subdivision, confederates more readily than any other form of corporate existence, . . . and may be composed of Indians of different tribes or nations, and becomes a de facto band by the extent of its membership, its continuity of existence, and its persistent cohesion, subject to the control and power of a leader having the recognized authority of a commander and chief. The different divisions of the Indians have not usually originated from the conventional mode which organizes white persons into political communities, but have originated as a condition in fact, and when so existing they are recognized by the laws and treaties as a separate entity, and held responsible as such. In Dobbs v. United States, 33 Ct. Cl. 308, at pp. 313-317 (1898), the Court of Claims found: [A] nation, tribe, or band will be regarded as an Indian entity where the relations of the Indians in their organized or tribal capacity has been fixed and recognized by treaty; second, that where there is no treaty by which the Government has recognized a body of Indians, the court will recognize a subdivision of tribes or bands which has been recognized by those officers of the Government whose duty it was to deal with and report the condition of the Indians to the executive branch of the Government; third, that where there has been no such recognition by the Government, the court will accept the subdivision into tribes or bands made by the Indians themselves.(Tully v. The Apache Indians, 32 Ct. Cl. R., 1, 1896) But in the application of this rule the court has had to go further and recognize bands which simply in fact existed, irrespective of recognition, either by the Department of the Interior or the Indian tribes from which the members of the band came. Victoria's band of Apaches was merely a combination of individuals from different bands associated together for the purpose of waging war against the United States. The band did not exist until its warfare began. It had no geographical home or habitat. A ferocious sense of injustice induced the Indians to prefer death to submission, and they fought the troops of the United States until the band and its members were extinct (Montoya v. The Mescalero Apaches, 32 I.D. 349). In Montoya v. United States, 180 U. S. 261, at p. 266 (1901), aff'g.32 Ct. Cl. 317 (1898), the Court sought to establish working definitions of the terms "tribe" and "band": We are more concerned . . . with the meaning of the words "tribe" and "band." By a "tribe" we understand a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory; by a "band," a company of Indians not necessarily, though often of the same race or tribe, but united under the same leadership in a common design. While a "band" does not imply the separate racial origin characteristic of a tribe, of which it is usually an offshoot, it does imply a leadership and a concert of action. How large the company must be to constitute a "band" within the meaning of the act it is unnecessary to decide. It may be doubtful whether it requires more than independence of action, continuity of existence, a common leadership and concert of action. While societies, clans and factions have emerged, changed or dissolved among the Keetoowah people, the Keetoowahs are none of these. Among other revivalistic voluntary associations, the Keetoowah Society (later known as Keetoowah Society, Inc.) formed among the people who called themselves Keetoowah, in Oklahoma, but not all Keetoowahs belonged to that Society at its formation, and the Society has excluded many Keetoowahs since. "Keetoowah" it is not the name of a clan, because clan descent runs with the female line, and UKB membership, except in the case of the Keetoowah Society and other voluntary associations within the UKB, never required clan affiliation through the member's maternal line in one of the clans represented among that particular voluntary association. Though almost all the Keetoowah Band's factions claimed to incorporate all the Cherokee clans, Four Mothers Nation incorporated clans of the Cherokee, Choctaw (including Chickasaw), Creek, and Seminole Tribes.[Central Classified Files of the BIA, Department of Interior. Box 463. Accessions 56A-588. Records for 1948-1952. Five Tribes. 010. Legislation (011.-015). Correspondence relating to Four Mothers Nation, a predominantly Creek organization] Further, the clan names and their characteristics varied among the UKB factional organizations, and still do. The Keetoowahs were united by common descent, consent, and affiliation, who sought to reaffirm that unity under a primary rule by adopting a charter, constitution and bylaws. Roberts said he had responded to Pumpkin's bid to convert the lands of his followers to "a community holding and with some sort of modification of earlier tribal ways of management and political direction." Instead of submitting these suggestions to the UKB Chief, Roberts turned them over to Principal Chief Milam of Cherokee Nation, "for any comments he might wish to make." Roberts suggested it would be a wise use of Milam's position to let him visit with Pumpkin's people and make recommendations. Roberts recommended against the pooling of the restricted or allotted lands of members of the Seven Clans Society "anywhere in eastern Oklahoma." Roberts closed with some general observations: Since the proposals for an organization of the Keetoowahs, Seven Clans, Four Mothers Nation, Goingsnake, and some two or three others have been presented in the last few months, they have had some investigation and study. While the study has not been exhaustive, examination into the areas where these desires originate discloses what amounts to a group of people with some Indian blood--not necessarily full blood--who appear to be frustrated and discouraged by circumstances around them. Frankly, this office is not impressed with any recommendation for communal approach to the difficulties. It is our thought that these manifestations of sociological dislocations are symptomatic of spiritual and economic bankruptcy. We believe it to be the responsibility of the Indian Service to do something about the situation. The political effect, however, of an effort, such as Mr. Pumpkin seems to have in mind, is certainly of doubtful value. It is our general belief that, if roads can be built through these isolated communities, if better school facilities can be developed, if a better use of credit and other economic resources is attempted, if the thoughts of the Indians are turned from within themselves to an awareness of the situation about them, if their action is really predicted on thinking rather than emotion, probably much can be done to reestablish satisfactory living conditions among them. Finally, in denying the value of anything the UKB proposed, Roberts damned the entire reorganization enterprise: Actually, no one could even approximate what these men want. They really are expressions of frustrated individuals who, for one reason or another, have not reached the degree of success or satisfaction of life that they seem to feel they are entitled to, and they are looking to some kind of past for their satisfaction. . . . Such are my reflections on the Keetoowahs, the Night Hawks, the Seven Clans, Four Mothers, Goingsnakes and other fragments of the past that, all but in the imperfect memories of old men, are gone forever. Roberts, who never changed his attitude, clearly based his conclusions on his own scant and reluctant personal contacts with the UKB, on his limited understanding of social anthropology, and most lamentably, on his own political attitudes and biases. Roberts's highly subjective and ill- informed stab at a sociological and ethnological analysis of the Keetoowahs was ludicrous, if not libelous. His failure to acknowledge or discuss in his report the findings from over ten years of documented negotiations, field studies and monitoring by the Organization Field Agents and his own predecessor was stunning. His obvious preference for dealing with Principal Chief Jesse B. Milam and plan of using the latter as a "handler" for the UKB leaders is telling. It suffices to say, his superiors ignored his suggestions. Burdened with a Superintendent in the field who was visibly reluctant to live with the 1946 Act, Zimmerman did not get around to dealing with the UKB issue himself for several months. On 27 July 1947, Levi Gritts stated in an interview for the Muskogee Daily Phoenix the purpose of Keetoowah acknowledgment was not to be mistaken for a reorganization of Cherokee Nation itself. He said, "If the recognition had been as a Cherokee Tribe, or organization, it would have had to include all the Negro and white persons living within the Cherokee Nation." The "great number of Cherokee Indians as well as . . . repeated suggestions of personnel of the United States Indian Service" motivated these decisions, and the organization effort had full support of the U. S. Indian Service, reuniting the various Keetoowah factions, for the purpose of organizing them under the OIWA and IRA. The question remained, exactly who in the Indian Service was lending the reorganization effort "full support." On 2 September 1947, Congressman Stigler reminded Commissioner Zimmerman that he still expected the momentary arrival of the approved Keetoowah charter.(See *: IV; File # 30869-1947) After a year of patiently waiting, the United Keetoowah Band formally requested Secretary of Interior William E. Warne's cooperation, as Congress had ordered. The Tribe insisted that Warne approve the Tribe's Charter, and order preparations for a tribal referendum on other Organic documents, so that the Tribe could conduct business under OIWA [Letter, 19 September 1947, Chief James Pickup to the Secretary of Interior; see *: IV] Senator Elmer Thomas of Oklahoma forwarded a copy of the letter to the Secretary of Interior, J. A. Krug, and prodded Krug to advise him when the Department intended to comply [Letter, 24 September 1947; see *: IV] Oklahoma Congressman Stigler (2nd District) also asked Acting Commissioner of Indian Affairs for the Department of the Interior William Zimmerman what was holding up the approval of the Constitution, concluding plaintively, "Will you please see that this matter is giving immediate attention and advise me accordingly?"[Letter, 25 September 1947; see *: IV] On 1 October 1947, Tribal Relations Officer Erma Hicks forwarded a copy of the 19 September 1947 Pickup letter to Assistant Commissioner D'Arcy McNickle, asking for his views on the UKB files. Citing difficulties in approving the roll for the Tribe, the Assistant Commissioner indicated approval for the Constitution would follow the UKB's approval of the roll. Secretary Warne reported to Senator Thomas on the progress toward adoption of a UKB Constitution and Charter [Letter, October 6, 1947; *: IV], echoing Zimmerman's concern about the approval of the roll. In a letter that probably was written by D'Arcy McNickle, Commissioner Zimmerman advised W. O. Roberts, Superintendent of the Five Civilized Tribes Agency [Letter, 6 November 1947; see *: IV] that his office had reviewed the proposed constitution and charter of the Keetoowah Band of Cherokee Indians along with the legislative record, as well as the 21 July 1947 Roberts memorandum about the UKB, and McNickle added: Your letter . . . suggests that the various factions making up the group are each striving to gain control of any organization that might be set up; indeed, to favor itself as the body referred to in the Keetoowah legislation. It was never the intention of the Office to favor any faction and we have acted all along on the assumption that the factions would come together in a united body. The list of individuals compiled in 1942 by the Organization Field Agents, Mrssrs. Ben Dwight and Albert Exendine, was understood to include individuals from the different groups; the committee submitting the list, consisting of John Hitcher, Nelson Too Late and Jim Pickup, was understood to be nonpartisan. The question of membership continues to be the basic problem. It is our view here that we should revert to the nine districts on which Keetoowah organization in the past has been based. . . . I suggest that the matter of membership be referred back to these districts. In order to achieve this I propose that a constitutional and membership committee be created at this time. . . . The districts should be called upon to elect representatives to the constitution and membership committee, which might then be convened at a time and place agreeable to all. As its principal order of business, this committee should pass upon the list of names, numbering 3,678, compiled in 1942, and determine whether this should serve as the basic membership roll or whether it should be corrected. If it is taken as the basic membership roll, the article on membership in the constitution might well provide that corrections could be made any time within a period of five years or other suitable period. After this question of membership has been settled, we will proceed to a consideration of the provisions of the constitution. The Organization Field Agents moved in and tried to sort out the confusion. As it happens, most members of the various Keetoowah groups at the time of the 1942 UKB Roll were members of one or more of the other groups composing the UKB. Having written this letter to Roberts, Zimmerman dashed off a note of apology to Pickup for not responding the Chief's pleading letters about approval of the UKB Charter. Zimmerman cited the Office's recent move from Chicago as the reason he had been unable to answer. McNickle wrote a letter for Zimmerman advising Pickup: The problem of organizing the Keetoowahs has not gone without attention, however. We recently wrote Superintendent Roberts and perhaps he has been in touch with you. We have asked that he examine further into the question of the basis of membership in the proposed Keetoowah organization and I am sure he will want to ask you to help in working this out. We will wait to hear further from Mr. Roberts. [*: IV; 18 November 1947] Zimmerman and his staff based the conclusions in his 6 November 1947 letter to Roberts on the UKB organization files that Organization Field Agents had assembled between 1934 and 1947. It is possible that Roberts relied too much on his staff to research and write this report, but that seems unlikely, since Roberts appeared to base his report on his own field notes. Roberts knew plenty about the UKB organization effort before his own involvement, though he affected convenient ignorance. Roberts attempted to scuttle the UKB reorganization effort using ignorance as an excuse. Roberts later attempted to reverse the Tribe's successes. In claiming to have read all the available materials on the UKB, Roberts had denied the existence and implications of Organization Field Agent Exendine's 1942 UKB report, which Exendine had forwarded through Roberts's predecessor, Superintendent Landman, to Zimmerman. Roberts should have consulted with Zimmerman, the UKB and others to discover whether they had files pertaining to the UKB situation from his predecessor's tenure before panning the tribe's efforts; as it turned out, Robert did contact others only after receiving Zimmerman's response. Roberts's response to Zimmerman's letter proves that Roberts knew he should have looked around for any pertinent files before declaring UKB reorganization a pointless exercise. A reference copy of the Organization Field Agent A. A. Exendine's memo to Zimmerman (*: IV, dated 26 October 1942, cited above) appears in the file accompanying Zimmerman's response to Roberts, in which Zimmerman charitably ignored Roberts's outburst, while suggesting pointedly that the Commissioner was well-aware of Dwight and Exendine's field work.[See *: IV; the reference copy of the Exendine memo was File # 38084, 2 December 1947; Zimmerman's response to Roberts was File # 27285-47; all these materials appear in File # 43292-46- Cherokee Nation-068] Roberts covered himself by reporting in his response to Zimmerman that for several months, his office had devoted some time to "bring into more active organization the several groups of Indians who have either organized heretofore or are planning to do so," and that he was ready to favor the Commissioner with a letter on the organization progress of the Keetoowah Band of Indians. Roberts reported to Commissioner Zimmerman, alluding to his lack of records, alleging that: The files of this office are incomplete and apparently the recollection of those who had to do with the organization is not too clear. . . . I have asked several of the members of the Cherokee group about information and their files. It would seem there is not much available from the organization. . . . If the Office has time to do so, I would like to have a little more complete resume of Office files in this matter. . . . I could have a photostatic copy of the map which you have made and return it to you. Otherwise, I do not know just how I can get the information as to what was in the thoughts of those arranging the plans for the organization. Doubtless, a good deal of work was done by Mr. Dwight, Mr. Xendine and others.[See *: IV; File # 35030, 10 November 1947, in Washington, D. C. and Fort Worth NARA] Roberts did not mention whether he asked the tribe's permission to consult with their tribal attorney, Earl Boyd Pierce, at his Muskogee office, a few miles east of Muskogee; and considering that Mr. Pierce certainly had his client-related files, as long as the UKB granted permission, Pierce probably would have obliged Roberts by supplying copies of important records related to the organization issue that remained in his custody. Roberts described his investigations further, and offered an interesting suggestion: I have talked with Mr. Perkins, Mr. Dwight, Mr. Hitcher, Mr. Jim Pickup and others, and we do not get a very connected story. It seems that a Constitution and By-laws were proposed, were acted upon properly by the so-called United Keetoowah Cherokee Band and that the Constitution and By-laws as presented were recommended for approval to the Secretary of the Interior, this action bearing date of February 20, 1942. It appears that later on a statement of the officials of the organization under date of October 2, 1942, claim 3687. It then appears that some members of the Cherokee Tribe for reasons not clear sought to change the name of the group to the United Cherokee Band of Indians in Oklahoma. The files disclose that in the records with reference to the Keetoowahs [it] is marked in pencil or pen and that United Cherokee Tribe is the official name. It appears that in 1939 a convention for the purpose "of voting for or against a provisional Constitution" was called and that later on in August, 1940 another call "pursuant to the order of the United Keetoowah Band Council for the purpose of election of officers" and in this call "nine" districts were named. In October, 1946, I attempted to bring the officers of the Keetoowah group together for my information about the organization, plans and procedures. Rev. Jim Pickup answered the request in the form of a letter which he signed as Chief of the United Cherokee Tribe of Oklahoma, and later on in person, and I have been in frequent correspondence or personal discussion with Mr. Pickup since that time. My last discussion with him was today and in the discussion I asked several questions which I think need to be cleared up before we could comply with your letter of November 6. In some manner, the idea that there are "six" separate groups of the Keetoowah Indians has gotten into the correspondence and the thinking of some of those who are interested in the organization. While I did not have your letter at the time of my discussion with Mr. Pickup, it is clear that the membership element is not fully resolved, that there are rival organizations or at any rate difference of opinion as to who should be representative of the Cherokee Nation. The question arose some weeks ago in an effort to set out a means of selection of an Attorney to represent the Cherokee Nation in the matter of its claims, if any, against the United States before the Claims Commission. As matters now stand, the assumption is that there are "nine" groups of Cherokees, that each group should select a representative, and that all of the representatives should come together for the purpose of selecting the Attorney; however, it also appears that the Keetoowah group wants to make selection of their own delegates. It is obvious, of course, if they have 3500 members or more, and in fact Mr. Pickup claimed 5000, that they would overlap several of the communities - might have members in all "nine" of the divisions. It is, I think, accurate to say, however, that the whole Cherokee situation is shaping up in such a way as to be indicative of a general desire of a large number of the Cherokee people to join together in some kind of effort to protect the lands of members of the group, to try to do something about the education, the health of the neglected areas and to, as Mr. Pickup stated, help the Indian Service "to reach out and get to the Indians who need help."[Emphasis added] Roberts addressed the distinctions among the various Keetoowah factions -- including in the United Keetoowah Cherokee Band the Keetoowah Society, Inc., the Cherokee Immigrant Indian Group (a. k. a., Eastern Immigrant Cherokees, Eastern and Western Cherokees, or "the Foster faction"), the Four Mothers Nation, Seven Clans Society (a. k. a., Goingsnake Fire), and the Medicine Society -- by seeking to blur those distinctions. Roberts sought to avoid segregating the groups regionally, even though Wisdom and others had pointed out that most of these groups had some particular territory, though most had members in more than one county.(14: I) The result was that the BIA expressly identified the UKB population with the service-eligible (quarter-blood or more) and needy Cherokee population remaining in 1946 within the old boundaries of Cherokee Nation. However, Roberts lacked the map of territorial boundaries: We do not have a map delineating the "nine" divisions. Apparently, the map was made by Mr. Dwight and Mr. Xendine [sic! Interestingly, Roberts consistently misspelled "Exendine"'s name] with some help in this office. The original of it is apparently not here and we do not seem to be able to trace it. A very poor photostatic copy of the map in question appears in the UKB files in the National Archives. The district boundaries on the map, marked in carmine pencil, resemble those of the old Cherokee Nation, and are the same as the present boundaries, but the correspondence characterizes them as the territorial districts forming the basis of the old Keetoowah organization. Most of the population then, as today, resides within five districts out of the nine, and within five Oklahoma counties out of the 14 in northeastern Oklahoma. Roberts knew that a tribe needed an identifiable territory, even though in the case of Oklahoma, no reservation remained for the UKB to claim. There still were restricted lands, trust lands and tribal lands scattered about. It seemed sensible to use the various geographical divisions or districts of the Old Cherokee Nation as UKB voting districts, even though no particular faction was restricted to any of these individual territories. Knowing that these various factions overlapped as many as five of these old district lines in terms of the distribution of their membership, Roberts hoped to forge unity among the factions by melding them geographically, while allowing them to avail themselves of the plan Zimmerman favored. Zimmerman wanted to allow the various bands of Keetoowahs to obtain separate charters through the UKB itself, and function under the UKB's federally-recognized umbrella (Article 3 of the 1950 UKB Charter provides the means for factions to obtain these charters). What remained was to bring the various Keetoowah factions together: Mr. Pickup has set December 10, 1947 as a time for bringing together all the officials and as many members of the Keetoowah group as he can. The meeting is to held at Hulbert, Oklahoma at 10:00 o'clock a. m. and will have wide publicity. I am arranging to be there and I would like to know, first, is there an approved Constitution and By- Laws in the Indian Office; second, is there a list of the 3687 names who are alleged to have joined in a vote for approval of the Constitution and By-laws and third, since the proposed Constitution and By-laws provided for a Chief, what, if any, effect will such position have in relation to that of the Principal Chief (Mr. J. B. Milam, Claremore, Oklahoma) appointed by the President? The Principal Chief of Cherokee Nation was the trustee of Cherokee tribal property, from which UKB property was not segregated in the 1946 Act, or by secretarial action from then on. Forseeing the probability that the UKB territorial boundaries would overlay or fall within those of the Cherokee Nation, Roberts hoped to avoid balkanization of Keetoowah factions on distinct land bases. He continued to hope that Jesse B. Milam, current Principal Chief of Cherokee Nation, would take an active role in the reorganization effort. Perhaps he hoped that Milam would run for, or better yet, accept the office of Chief of the Keetoowahs over Pickup and the other chiefs. After all, Milam was a member of the Keetoowah Society, Inc., which apparently enforced no blood quantum requirement for membership. However, since Milam had very little Indian blood, he was even less eligible at the time for UKB enrollment than was the tribe's attorney, Earl Boyd Pierce, who was one eighth Cherokee. Anyway, Milam, who already was in declining health, was not interested in joining into the UKB's political fray. Milam responded neither to the entreaties of the Superintendent nor of the Commissioner, who urged Milam at least to take a position on the UKB and its reorganization. Roberts made some interesting remarks about the "Cherokee group": It is my observation that the Cherokee group [it is unclear here whether he was referring to the Cherokee Immigrants, Eastern Immigrants, or Foster Faction, or the class of Dawes enrollees] is less organized, more disintegrated than the others. It seems to me, however, if we are to get the support from a considerable number of Indians in a live and active program in rehabilitation and social betterment, some kind of organization is indicated. Inasmuch as the Keetoowah organization has not only the benefit of law, but of several years' effort, it of course, would seem to me that we should revive and bring up to date the Indians' interest in this organization. I am sure that there is a growing interest in it, probably because of the questions I have raised, which I assume the Indian people are taking as evidence of official interest in the development of their organization. . . . I would like to be able to present to the people on December 10 a comprehensive outline of suggestions and plans for bringing the Keetoowahs into a full and effective organization. Superintendent Roberts wrote to Commissioner Zimmerman again in about two weeks to report additional findings (*: IV; Letter, 22 November 1947, File # 38084): Rev. Jim Pickup has held several meetings of Indians at various points of the Cherokee country and has been in the office several times. He appears to be much interested in the completion of the organization of the Keetoowah group. . . . It is my belief that Mr. Pickup's ideas envisage an organization of the Cherokee people in a sort of fraternal society for mutual good will and social advantage. . . . Mr. J. B. Sixkiller . . . was present, giving me a rather extensive outline of the Keetoowah movement. He stated that it had all died out in the 30's, that the work of Mr. Xendine and others had had something to do with the reorganization of it, that he personally was an officer in the group about his home. He indicated the purpose of the organization is all inclusive of the interests of the Cherokee people, that while not all Cherokees are members, nevertheless, the Keetoowahs in his opinion are representative of most of the Cherokees, having members in all of the sub-divisions and that in a general way would be interested in the Keetoowah organization, but is skeptical of any worthwhile results because as he stated so many of the leaders are breaking away. It seemed to be Mr. Crawford's opinion that once a leader gets started he finds it difficult to work with other leaders, and that the organization tends to disintegrate into little groups, each with a leader. Mr. Crawford was especially displeased with Levi Gritts, a former organizer and leader of the Keetoowah group. Mr. Crawford stated and was corroborated by others that "Mr. Gritts had broke away from the main organization, that he wants to run everything." Further inquiry seems to indicate that Levi Gritts has separated himself and a group of followers from the main organization and that there is considerable opposition emanating from the Gritts' organization against the group dominated by Rev. Pickup, Mr. Sixkiller and others. I was informed that the organization of which Mr. Pickup is the present leader has employed an attorney, Mr. Earl Boyd Pierce of Muskogee, Oklahoma, who is to act as adviser and in behalf generally of the Keetoowah society [sic, "society" not capitalized]. Mr. Eli Pumpkin, while not present at the Bull Hollow meeting, has several times indicated his interests in the Seven Clan Society, which seems to have close relation with another organization, more or less known as the Nighthawks. It appears that there are about thirty families who are followers of the Seven Clan Society, or Nighthawks in the northern Cherokee area. It is alleged that the Nighthawks have members throughout the Cherokee group. The aims of this group are to set up a territory similar to a reservation, placing the lands in restricted status, with title in the Federal Government for the group. It is probable that this group is the most conservative of all of them, inasmuch as the stomp dance and some other observations allegedly of an older period are still observed by these groups. Apparently, the Keetoowahs do not approve of the stomp dance while the Nighthawks do. There are of course other differences, but up to this time I am not aware of them. I found differences of opinion as to just where the list of members may be. Mr. Pickup thinks there are 5,000 members now. He admits, however, no very formal way has been worked out to admit members or to keep a list of approved membership. Mr. Pierce has been invited to discuss the Keetoowah organization which he proposes to do in the next few days. Inasmuch as all of the recognized leaders of the Keetoowahs have expressed the fact that Mr. Pierce has been selected as the spokesman for them, it appears advisable to wait to see what he has to suggest. The UKB was so pleased with Earl Boyd Pierce's efforts regarding UKB organization that the Band extended him full membership, although he did not otherwise qualify for membership. Earl Boyd Pierce eventually became linked with Principal Chief W. W. Keeler and the affairs of Cherokee Nation of Oklahoma. The common perception among members of the UKB today is that Mr. Pierce had a conflict of interest with respect his representation of the UKB when he took Cherokee Nation's Executive Committee as a client. As events progressed, Pierce worked to the advantage of CNO, and to the direct detriment of the UKB, but in the beginning, he strongly supported the UKB, as attorney and as enrolled member. McNickle advised Erma Hicks on 31 December 1947 that nothing particular needed to be done in response to this memo for the time being (*: IV; Memorandum, 12 December 1947, attached to File # 38084) McNickle wrote for the Commissioner, responding to Roberts's 10 November 1947 letter: We have made a thorough search of our files and as far as we can tell the list of 3,687 names was never submitted here. I am not able to say who would have this list unless it would be Mr. Pickup or some member active in the organization efforts back in 1942. I am attaching our file copy of the map showing the nine divisions which, as I understand it, go back to the original territorial districts forming the basis of the old Keetoowah organization. [*: IV; Letter, 8 December 1947, File # 35030-47] Zimmerman's letter advised Roberts: Neither this Office nor the Department has ever approved a constitution and bylaws for the Keetoowah organization, although we have a proposed constitution here. It was upon examination of this proposed constitution that the question on membership was raised. Zimmerman's letter noted that before 1939: Mr. Frank Boudinot and Levi Gritts were both active at one time pressing for some type of organization. All discussions previous to the enactment of the Keetoowah bill were premature since there was not authority to recognize the group under the Oklahoma Act. We did urge Boudinot and Gritts to attempt to bring all factions together, since we were certain that if the Keetoowahs ever were to organize it would have to be done on the basis of all persons claiming affiliation with the Keetoowah idea or philosophy. In the beginning obviously it was a kind of select organization of relatively pure- blood Cherokees who were interested in maintaining Cherokee culture and custom and in opposing the efforts of the Government to destroy the tribe and the culture. Mr. Boudinot is now dead and Levi Gritts is opposed on personal grounds by a number of Cherokee Indians. Whatever his personal failings may have been in the past, you will find that he is full of the history of his people and if you have not previously talked to him, I suggest that you attempt to do so. He, better than anyone else that I know of, can explain the history of the Keetoowah movement. [*: IV; Letter, 8 December 1947, File # 35030-47] Recall that in 1947, the Keetoowah Society, Inc., resumed its efforts to obtain separate reorganization from the UKB [Letter, 26 July 1944, Gabriel Tarepen to Commissioner of Indian Affairs William Zimmerman, Jr., in Central Classified Files of the BIA, Department of Interior. Box 463. Accessions 56A-588. Records for 1948-1952. Five Tribes. 010. Legislation (011.-015). File # 29941-44] The Oklahoma congressional delegation responded to the requests of the United Keetoowah Band, but not the separatist requests of the Keetoowah Society, Inc., or of any other group. Whatever else the Keetoowah Band was as of 1947, it was no longer a creature of the Keetoowah Society, Inc., or of any other particular Keetoowah faction. Zimmerman clearly intended to keep things that way: I would not say that we should refuse to cooperate in forming an organization if the plans do not include all members of the Keetoowah group, but I should hesitate to give any encouragement to any factional organization. [*: IV; Letter, 8 December 1947, File # 35030- 47] To help clarify things for Roberts, Zimmerman sent him the Department's file copy of the draft UKB Constitution and Bylaws, adopted in 1939 and revised in 1942, along with Charles Wisdom's history of the Keetoowahs.(14: I) The Wisdom study presumably had been the primary source for the 1937 opinion of Frederic L. Kirgis, Acting Solicitor to the Commissioner of Indian Affairs, which found the Keetoowah Society was not a body eligible for reorganization under OIWA. The purpose of the Department's UKB organization work between 1937 and 1947 was to drive the various factions, none of which was dominant and none of which was able to reorganize without the others, into a united body within a distinct territory that disregarded any geographic, social or unique philosophical or religious boundaries individual factions might have claimed up to that time. Wisdom reported in his 1937 narrative on the Keetoowahs that the "Nighthawk" faction of the Keetoowah Society alone was "an organized and functioning social entity," and only that entity had to be dealt with as "a distinct and independent community" by the Indian Office.(14: I) On the other hand, his own narrative shows the "Nighthawks" experienced a 90% erosion of membership as factions erupted from this particular group between 1906 and 1937. As a highly syncretic cult (combining elements of true Cherokee traditions with identified Creek, Oneida, Quapaw, and fundamentalist christian and other elements), the Nighthawks represent the most polarized Keetoowah religious faction. Voluntarily isolated in a relatively well-defined and contiguous territory, and subscribing to strict rules and demanding membership requirements which based membership eligibility upon the applicant's matrilineal (clan) lines, Redbird Smith's "Nighthawk" Keetoowah Society could not represent or affiliate with the other groups, and never wanted to do so after 1924. The unambiguous intent of Congress in 1946, and of the UKB and the Indian Service in 1948, was that the United Keetoowah Band's membership was to be inclusive, in the first instance, of only part of the Cherokee descendancy, whose political interests remained distinct from those of Cherokee Nation-related organizations (the Executive Committee and Executive Council). The UKB attempted to keep Superintendent Roberts informed and involved in their deliberations, and they invited him on 12 December 1947 to their regular meeting, in Delaware County, at the Bull Hollow C. C. Camp and Community House.(72: IV) Having just received the 11 December 1947 instructions of Commissioner Zimmerman to investigate the UKB further, to ascertain their purposes, membership and other information, he responded very cordially, agreeing to attend, adding: "I am giving a good deal of study to the Keetoowah organization. I think there is a good opportunity to complete the organization work of this group, provided the people wish to affiliate with it." The Indian Service, he said, was studying the UKB membership issue. Roberts briefly indicated the difficulties at hand: The early organization work appears to have been prior to the enactment of the Keetoowah bill. Therefore, there was no legal basis for the organization. Another complication is the fact that much of the correspondence is divided -- some of it discusses the Keetoowah Band, some the United Keetoowah Band and some of it the United Cherokee Tribe. From the correspondence in this office, I am inclined to believe that there are differences between the Keetoowah Band and the Cherokee Tribe, that they are not one and the same. The correspondence also makes reference to a Nighthawk group or band.(70: IV) To that last paragraph, one might suppose Chief Pickup observed, "Comes the dawn." It is particularly interesting that here, Roberts admitted to having a body of correspondence in his office that led him to these conclusions about the UKB. Perhaps, as his interest had grown, Roberts finally had discovered the forgotten treasures in his files. He continued: I think we should need to know pretty definitely what the Keetoowah group really is and the ideas and philosophy which draw the people to it. Furthermore, I would like to have several names of other leaders or interested persons so that you and they might give me a better basis of estimating the purposes and possibility of organization of the Keetoowah group.(70: IV) Roberts and Pierce exchanged very cordial letters, indicating their eagerness to work together "perfecting the organization" of the UKB.(62: IV) Early in 1948, Superintendent Roberts reported to Commissioner Zimmerman regarding his conference "of about one and one-fourth hours" with "Rev. Jim Pickup, who is the Chief of the United Keetoowah Band of Cherokee Indians, and his Attorney, Mr. Earl Boyd Pierce, on the subject of perfecting the organization of the Keetoowahs and of visualizing the place of this organization in the affairs of the Cherokee Indians. Roberts obviously was quite taken with Pierce: In the outset, may I express appreciation of the high order of Attorney Pierce's comments, observations and recommendations. I truly believe him when he stated that his interest and work has been out of affection for the Cherokee people rather than any personal reward. Mr. Pickup says frankly that as yet he has paid his Attorney nothing at all.(73: IV) Roberts appears to have learned more about Keetoowah history from this one conversation than from any other source: It is the point of view of Mr. Pickup and Mr. Pierce that the original group was known as the Keetoowah Society; that it was under the sponsorship, or at any rate close interest of Mr. Frank Boudinot, a member of the Cherokee Tribe and [an] Attorney who lived in Washington for many years. His local representative was Mr. Levi Gritts, a near full blood Cherokee Indian. I am informed that the Keetoowah Society was incorporated under the laws of the State of Oklahoma and granted a Charter about 1920. There is no record of this Charter in the Muskogee office. I am further informed that the Keetoowah Society continued through the years with more or less interest until an election in 1939, at which time there were two candidates for the position of Chief of the Keetoowah Society; Mr. Levi Gritts, who was undoubtedly the preferred candidate of Frank Boudinot and the group of Indians over whom Mr. Boudinot had more or less influence; the other candidate was John Hitcher, a respected and intelligent full blood Cherokee, and who was elected to the position. Mr. Hitcher died in 1946 and was succeeded in office by Rev. Jim Pickup. Mr. Pickup's Chieftainship was verified by popular vote last year. I am further informed that shortly after the election of 1939, Levi Gritts gave public notice of his withdrawal from the Keetoowah Society as represented by John Hitcher and others, and that he started an active opposition to the leadership. Because of the opposition aroused by Levi Gritts, it became necessary on the part of forward looking leaders to resolve if they could the differences, but no such resolution has as yet been effected. Mr. Gritts claims to represent the Keetoowah Society. The efforts of many other leaders to bring about unity resulted in their taking the name of the United Keetoowah Band of Cherokee Indians. This is the name to which Rev. Pickup subscribes; Attorney Earl Boyd Pierce, Mr. Sixkiller and a number of other Indians espouse the completion of the Keetoowah organization. In other words, Mr. Pickup's organization is referred to as the United Keetoowah Band of Cherokee Indians. Mr. Gritts' organization is referred to as the Keetoowah Society. It further appears that the Keetoowah Society has a small membership, total number unknown, the guess being anywhere from 100 to 200. The United Keetoowah Band is estimated to have a membership of 5,000, more than 3,500 of whom have actually signed a membership indication. The records of this office bear out the verbal statements of Mr. Pickup and Mr. Pierce that the election of John Hitcher was well advertised, the provision was made in each district of the whole Cherokee group for the preferential expression of the body and that John Hitcher was fairly elected by a very considerable majority. It further appears that practically all of the former followers of Levi Gritts deserted him because of his tendency to secede.(73: IV; 28: IV) The Oklahoma congressional delegation responded to the requests of the United Keetoowah Band, but not the separatist requests of the Keetoowah Society, Inc., or of any other group. This is the first correspondence clearly indicating that Roberts was comprehending the UKB's character and circumstances. Roberts continued: It further appears that some effort on the part of the personnel at the Five Tribes to reconcile the differences of groups resulted in the modification of the proposed contract which changed the terms of it all to the United Cherokee Band. According to my informants, this proposal entirely missed the point. Summarizing the point of view expressed today, the United Keetoowah Band of Cherokee Indians is and should be the representative body employing the Keetoowah name. There is a membership of upwards of 5,000 people in the organization. Not necessarily all Cherokees belong to this group, nor do they all desire the Keetoowah ideas. Furthermore, I am informed that the Keetoowah idea in its inception springs from divergent points of view. Originally, the Keetoowahs represented in effect the north wing of the Cherokee Tribe. They were principally the full blood or high degree and Indian blood and their general thought was loyalty to the Government which they recognize as "the north." They sponsored retention of the Cherokee traditions and opposed the endorsement of white culture out of the theory that it was in the latter sense a deviation from the true Indian principle that resulted in part of the Cherokees joining forces with the Southern Confederacy. I am informed that the very modern concept of the Keetoowah idea is [Civil War] Republican; that the Nighthawks and the rest of Texas Cherokees and Arkansas Cherokees and what-not are [Confederate-Era styled] Democrats. This rather amusing text is seriously indicated by Rev. Pickup who by the way is always of serious mind and demeanor.(28: IV) The delicate question of the relationship between the UKB and Cherokee Nation and Cherokee Tribe remained, and Pierce offered a clarifying statement. In his remarks, Pierce hinted at the possibility that the UKB, in his view, could become (or provide) the vehicle for the restoration of Cherokee Nation: There was some discussion as to how the Keetoowah group or groups may fit into the general pattern of presentation of Cherokee claims against the Government and how Attorney representation is likely to be affected by it. There was a question of the specific expectation of the two gentlemen as to what the Indian Service would do concerning further organization of the Band. Attorney Pierce frankly stated that the Band meant only a part of the Cherokees; that it would likely influence getting all of them into the Keetoowah organization, but that he saw no reason to believe that the completion of organization work would in any way interfere with administration or the interests of the Cherokee people as a whole.(28: IV) Pierce's views were out of line with Washington's policy, but reflected his own intent and aspirations. Pierce was looking out for the interests of his paying clients, Cherokee Nation, from the beginning. There is no doubt that he consciously used the UKB to get his foot in the door as an attorney for the very lucrative Cherokee caseload, and he did not want the UKB rocking the boat. The UKB's long association with Pierce was a saga of professional treachery from the beginning, though many Keetoowahs believed in him until he died. Pickup and Pierce obtained the Superintendent's promise of an interfaction meeting later that month. The purpose of the meeting was to determine the course the UKB would follow, and all parties and factions were supposed to participate, including the "Nighthawk" Keetoowah Society, the Keetoowah Society, Inc., and the Cherokee descendant organizations: The Superintendent has promised Mr. Pickup, the head of the United Keetoowah Band of Cherokee Indians, to be present at their meeting on January 29, 1948. This meeting is scheduled for the purpose at their meeting on January 29, 1948. This meeting is scheduled for the purpose of bringing together all of the interested people that is practicable to do so and to give opportunity for representation from all of the districts of the whole Cherokee organization and to attempt to settle the directional trend of the organization. Levi Gritts and others will be invited to be present. Chief Pickup and Attorney Pierce recommended that the Superintendent not only attend but bring along stenographic help to make notes of the meeting so that a thorough understanding may develop. Both men were anxious to resolve organization differences so as to avoid interference with proceeding with tribal claims.(28: IV) Clearly, the purposes of reorganization, from the viewpoint of the UKB, included the aggressive pursuit of tribal claims. The "Nighthawk" Keetoowah Society earlier had disavowed any role in the pursuit of such claims. Principal Chief of Cherokee Nation Jesse B. Milam visited with Chief Pickup and Earl Boyd Pierce on 13 January 1948, and the conclusion was that Milam was persuaded that Pierce should be associated with the attorneys then representing the Cherokees, though Pierce had been "cut off" from representing the tribe only the previous year, due to his recent departure from employment by the Indian Service. Here is where the potential for Earl Boyd Pierce's representational conflict of interest probably began.(75: IV) Superintendent Roberts recorded his observations of his 10 February 1948 meeting at the Muskogee office of Earl Boyd Pierce. Participants included: the attorney for the Texas Cherokees, Charles Ed Frye; Pierce; attorneys already presenting claims for the Cherokee Nation, Norvell, and Dennis Bushyhead; as well as Houston B. Teehee, participating by phone, representing the Seven Clans Society. The memo indicates the Superintendent's understanding of the relative positions of the various Cherokee groups, relative to claims, but also discusses the "Relative place of the Keetoowahs." There was a consensus that the Texas Cherokees were to be treated as a separate group, as contemplated in the Act providing for the Claims Commission. Norvell was preparing specific briefing materials demonstrating reasons for treating Texas Cherokees as a separate group. During the discussion, the parties arrived at a consensus that they needed to validate the work of several attorneys then interested and involved in Cherokee claims against the U. S. Roberts observed: all attorneys agreeing to pool their affairs and present their separate interests in such a way that there will be no dissonance or disadvantage to the Cherokees. Attorney Norvell, Sr., will be in Oklahoma in about two weeks when the whole matter will be presented to the Superintendent as a basis of the meeting proposing conclusion of the recommendations to the Department for approval.(Memorandum of Discussion in Office of Mr. Earl Boyd Pierce, 10 February 1948, by Superintendent of Five Civilized Tribes Agency W. O. Roberts, in Fort Worth NARA) The Meeting in question was to be the Cherokee Convention of 30 July 1948, perhaps the single most seminal event leading to the eventual open conflict between Cherokee Nation and the UKB. Referring to the attorneys' discussion of the UKB, Roberts wrote: Concerning reference to the Keetoowahs, apparently all of the Attorneys are interested for sentimental reasons in continuing with arrangements to fully organize the Keetoowah band or group, if they wish to complete organization. There was reference to Jim Pickup, Levi Gritts and the unfinished work of Frank Boudinot, all of the members present indicating an interest in being helpful in getting full information to the Muskogee office and to otherwise be of assistance in completing organization of the Keetoowahs. There was some question of the extent of organization. Apparently, the sentiment favored a Constitution and By-laws but that such matter of domestic relations, membership, assessment and authority over the affairs of individuals be exceedingly limited.(Memorandum of Discussion in Office of Mr. Earl Boyd Pierce, 10 February 1948, by Superintendent of Five Civilized Tribes Agency W. O. Roberts, in Fort Worth NARA) The view of the lawyers was to simplify Cherokee affairs by limiting the powers of the UKB; and it is certain that the UKB Council and members did not share this view. As it turned out, partly due to the intervention of the Chicago and Washington, D. C. offices of the Indian Service in support of the UKB, the Charter, Constitution and By-laws were far more expansive in delineating the inherent and retained sovereign powers and interests of the UKB than "apparently" these gentlemen contemplated, and one of the sovereign interests was the protection of UKB treaty interests. Earl Boyd Pierce apparently failed to advocate for the sovereign interests of the UKB at the 10 February 1948 meeting, now that he was safely assured of a profitable role in prosecuting the Cherokee claims. Obtaining this plum opportunity might have been Pierce's original incentive to accept employment by the UKB without a retainer. The attorneys referred Roberts to the widow of the late Rev. John Hitcher "of the Keetoowah organization for details which could simplify completion of the organization." Consistently, throughout the history of the UKB until the UKB obtained a permanent office after the death of Chief Jim Gordon in the 1980s, the wives and widows of Chiefs have been regarded more or less officially as the keepers of the estate papers and affairs of their spouses. Levi Gritts steadily lost his credibility, but not only because of his "tendency to secede," between 1937 and 1949, though he continued his struggle until his death at 78 on 27 January 1952.[Letter, 26 July 1944, Gabriel Tarepen to Commissioner of Indian Affairs William Zimmerman, Jr., in Central Classified Files of the BIA, Department of Interior. Box 463. Accessions 56A-588. Records for 1948-1952. Five Tribes. 010. Legislation (011.-015). File # 29941-44] The Oklahoma congressional delegation responded to the requests of the United Keetoowah Band, but not the separatist requests of the Keetoowah Society, Inc., or of any other group.. Besides other possible legal difficulties, Gritts's personal business practices as a hired lobbyist for the Keetoowah Indians' claims against the U. S. probably were under suspicion among the Keetoowahs. A letter from Harold Studie, Cherokee and a member of the Keetoowah Society, Inc., living in Little Rock, Arkansas, to the Commissioner, of 13 September 1949 (*: IV; File # 19378-49) offers some interesting clues: L. B. Gritts, acting secretary of this society, is supposed to have made contact, either in person or by representatives, with you on a matter of Financial Settlement between the Federal government and my tribe of people. Mr. Gritts, in meeting with my people, has collected enormous sums of money for traveling expenses in contacting your department. His only report back to the people was, that he would have to wait and get a written answer from you. He has been able to purchase a home and a new automobile since then. I would like, very confidentially, to hear your report of these contacts, if any has been made, very soon. Certainly, by 1948, rumors were flying about Gritts, and he had suffered significant damage. It seems certain that Roberts gave credence to at least some of these rumors, and at any rate, had reasons enough of his own to dislike Gritts. It appears that D'Arcy McNickle, as Director of the Tribal Relations Branch, was alarmed enough to respond: Mr. Gritts has made numerous visits to this office in connection with the proposals to organize the Keetoowah Indians. I do not know when the first of these visits was made, but I believe I first met him almost ten years ago. He came frequently with Mr. Frank Boudinot, and I believe that these two, along with other interested persons, obtained the adoption of the Act of August 10, 1946 (60 Stat. 976), which authorized the Keetoowah Indians to organize as a Band in accordance with Section 3, Oklahoma Indian Welfare Act.(Letter, McNickle to Studie, 18 September 1949, *: IV; File # 19378-49) Gritts advocated the general idea of passing the legislation, at least until 1939. However, by 1940, the schism between Levi Gritts and the UKB was irreparable, and Gritts certainly did not advocate the adoption of legislation that would permanently install his adversaries as the recognized Keetoowah tribal government. Recall that from 1944 to the date the Act passed in April of 1946, the Keetoowah Society, Inc., attempted to ask for separate acknowledgment legislation, for organization apart from the UKB. [Letter, 26 July 1944, Gabriel Tarepen to Commissioner of Indian Affairs William Zimmerman, Jr., in Central Classified Files of the BIA, Department of Interior. Box 463. Accessions 56A-588. Records for 1948-1952. Five Tribes. 010. Legislation (011.-015). File # 29941-44] The Oklahoma congressional delegation responded to the requests of the United Keetoowah Band, but not to the separatist requests of the Keetoowah Society, Inc., or of any other group. As it was, most of Gritts's own former followers abandoned the Keetoowah Society, Inc., for the UKB, and by 1950, the Society, Inc., was defunct. W. O. Roberts wrote again to Zimmerman on 7 January 1948, following up on recent letters regarding the completion of the organization of the UKB ("Keetoowah Society, United Cherokees"), reporting that the Seven Clans Society had contacted him to gain support for their efforts. Pumpkin in particular was offended that Roberts was showing interest in Keetoowah organization, while neglecting the Seven Clans Society. Pumpkin presented an alternative view of the Nighthawk Keetoowah Society, as a former leader: I am informed that the Seven Clan Society is a strictly independent organization of some thirty to forty families, who according to Mr. Pumpkin carry the traditions of early times, and are the only true representation of earlier Cherokee culture. I am informed that for a good many years the Nighthawk Society was the true representation, but that they lost their identity or at least their effectiveness by reason of the allegation that they turned from "the true worship of God" through the Seven Clan Society idea to a mere political entity; that they got away from the true faith and followed the false Gods of politics. Robert consulted with the followers and family of Eli Pumpkin, and concluded that Pumpkin's ideas were pipe dreams, "Christmas caroling of children." The question remaining, Roberts concluded, "is whether or not enough unity can be established to get an effective organization based on sensible outlooks." When Mrs. Josephine Creekkiller inquired on 23 February 1948 about the progress toward Keetoowah reorganization, the Acting Commissioner (in a letter written by D'Arcy McNickle) advised, "it would be a mistake to proceed on the assumption that organization of the Keetoowah band is in any way connected with the prosecution of claims against the United States. If the Cherokee Indians have claims against the United States it would be in the name of the Cherokee tribe rather than in the name of a band within that tribe."(*: IV; 18 March 1948, File # 5047-48; see also, Memorandum of Discussion in Office of Mr. Earl Boyd Pierce, 10 February 1948, by Superintendent of Five Civilized Tribes Agency W. O. Roberts, in Fort Worth NARA) The UKB could not represent the entire Cherokee descendancy class, because it was not Cherokee Nation, but a reorganized band that excluded the majority of Cherokee Dawes enrollees and descendants, the majority of whom, like Principal Chief Jesse B. Milam, already were less than 1/32 degree Indian blood. In a strained but diplomatic tone, Congressman Stigler again requested the Department's immediate approval of the proposed charter of the United Keetoowah Band early in 1948, stating: Your records will show that under date of October 1, 1947, your office advised that the proposed charter was under consideration and as soon as the membership body to be included was determined then final action would result. It would appear that sufficient time has elapsed to enable you to advise us as to just what disposition has or will be made. Please give this your immediate attention so we might inform the Keetoowah Cherokee Band of Indians. (Letter, 20 February 1948, Congressman W. G. Stigler to Acting Commissioner of Indian Affairs, William Zimmerman, Jr., File # 4515). Zimmerman responded weeks later, attributing his tardy response to the fact that "We have scarcely been able to get to our desks for the past couple of weeks on account of the various hearings which we have been attending." Zimmerman reported differences of opinion prevailed regarding the whereabouts of the tribe's roll, saying, "Evidently a list containing approximately 5,000 names was made up several years ago but no one knows where it is." Further, he observed: At a meeting held in Delaware County on December 18, these various leaders came together but did not succeed in agreeing on a plan of action. One leader for example, Ben Smith, indicated that he was not yet willing to join with the other groups until he was satisfied that the differences between the groups could be reconciled. Zimmerman added that he "expected to have a further report when a plan of procedure has been worked out"(Letter, 12 March 1948, Acting Commissioner of Indian Affairs, William Zimmerman, Jr. to Congressman W. G. Stigler) Stigler persisted in his pursuit of an early resolution: It will be appreciated if you will continue to give this your active attention and advise me as to any additional developments which have occurred in the field. I am so anxious to see this brought to an early conclusion. (Letter of April 17, 1948, to John Provinse, succeeding Zimmerman as Acting Commissioner) On 24 March 1948, Chief Rev. Jim Pickup invited Superintendent W. O. Roberts to a meeting of the UKB on 17 April 1948 at the Old Money Bean Place east of Hulbert, Oklahoma to discuss new developments on UKB organization.(Letter, 24 March 1948, Chief Rev. Jim Pickup to Superintendent W. O. Roberts, in Fort Worth NARA) The issue of claims representation gained a new wrinkle when the Keetoowah Society, Inc., decided to strike out in a new direction: It was reported today that Levi Gritts called a meeting of Indians to select an Attorney to present claims of the Cherokee Nation. The meeting allegedly took place Saturday, April 17, 1948. Approximately 30 people were present. It is alleged that the meeting was called in the name of the Keetoowah Society; that it was representative of all the Cherokees and that Gritts was the authorized and recognized representative. An Attorney from Tulsa, whose name was not given, was allegedly "employed" to act as Attorney for the Cherokees. The Attorney's wife acted as Secretary and he acted as Chairman. Throughout the meeting, Gritts was eulogized as indispensable to the Cherokee interests, and that he should be considered as entitled to share in whatever returns that might be obtained from any suit, claim or other presentation on behalf of the Cherokee Nation through said Attorney.(Memorandum, "Information relayed to the Superintendent by Attorney Earl Boyd Pierce of Muskogee and by Rev. Jim Pickup of Tahlequah, each separately, 20 April 1948, by Superintendent of Five Civilized Tribes Agency W. O. Roberts, in Fort Worth NARA) This meeting led nowhere. Gritts claimed Pierce was mean to him after the Society, Inc., had declined his services. Gritts also claimed that Pierce then took up with Pickup, who turned Roberts and the BIA against him.(Leeds 1992: 35) On 30 July 1948 --, at the request of Acting Commissioner of Indian Affairs Zimmerman -- Five Tribes Agency Superintendent W. O. Roberts, and Cherokee Nation Principal Chief Jesse B. Milam, a meeting of the Cherokee Nation convened at Tahlequah, Oklahoma for the stated purpose of reorganization of Cherokee Nation.(See *: IV; Letter, 8 September 1948, Acting Commissioner Zimmerman to Jackson Thomas Wolfe, Chairman, Keetoowah Society, Inc.) The UKB supposedly was "well represented" on the Cherokee Nation Executive Committee which arose from this Convention, because the general understanding was that CNO itself was terminated, or soon would be. The Keetoowah representatives selected out of the nine were J. B. Sixkiller, Ben Smith, and Hill Stansill.(Minutes, Meeting of the Executive Committee of the Cherokee Tribe, 3 September 1948, NARA; Stansill's daughter was a member of the UKB Council and is a member of the Excise Board; Leeds 1992: 36) The Cherokee Nation Executive Committee never had the official approval of the Secretary, and the participation of the UKB in the Committee never became a matter of official notice until 1970. From the standpoint of the UKB, the point of having some representation on the Executive Committee was the same as the incentive for having representation on the old Keetoowah Cherokee Executive Council that Levi Gritts had led for four years during the 1920s. The Keetoowahs wanted a say in the protection and control of Cherokee property interests. On 18 August 1948, Daniel E. Murphy, Acting Superintendent at Five Tribes Agency, after complaining about the Keetoowah protests of the Cherokee Convention due to the refusal of the assembly to hire the Society, Inc.'s attorney William N. Maben, noted in a letter to Commissioner Zimmerman: The contract will be submitted soon for approval. The minutes of the convention were returned for correction and they should be forwarded to your office within the week. As I have stated before, I feel the meeting was well handled by Chief Milam. Mr. Hyden concurs in this as does Mr. Finley, Supervising Attorney.(See also, Leeds 1992: 36) The "contract" to which Murphy referred was the Indian claims attorney's representation contract for Cherokee Nation. Resolution No. 3 of the Cherokee Nation Convention of 20 July 1948 authorized the Executive Committee to make the contract outside of assembled convention. Almost exactly ten years later, the Indian Claims Commission recognized the powers of the Cherokee Executive Committee in connection with the Cherokee Claims Docket 173 (see Additional Findings of Fact, September 14, 1961). Muskogee Area Director W. O. Roberts responded to an inquiry from the Committee in the form of a questionnaire, dated 15 May 1953, on the subject of tribal organizations (see other data from this Report of 30 June 1953, below). In 1953, Roberts found, in the case of Cherokee Nation or Tribe, that: The only tribal election was held in 1946 as a result of an invitation by the Principal Chief and the Superintendent of the Five Civilized Tribes to all Cherokee People to meet in the Old Capitol Building at Tahlequah, Oklahoma, for the purposes: 1. To discuss, consider and undertake proper action to promote the general welfare of all Cherokees in Oklahoma; and, to discuss such other matters deemed appropriate by the convention. 2. To select a Standing Executive Committee to assist the tribal officials in all Cherokee matters. 3. To select an appropriate Attorney or Attorneys with whom the Cherokees by blood in Oklahoma will negotiate a contract to be approved by the Commissioner of Indian Affairs authorizing said Attorney or Attorneys to prepare, file and prosecute to a conclusion before the Indian Claims Commission, or other forum established by law, all legal claims of every kind and character which the Cherokees by blood in Oklahoma have or claim to have against the Government of the United States. This is quoted from Public Notice dated July 1, 1948, To All Duly Enrolled Cherokee Indians By Blood in Oklahoma.(Report, 30 June 1953, Muskogee Area Director W. O. Roberts to the Honorable A. L. Miller, Chairman, Committee on Interior and Insular Affairs. More data from this Report appears below) On 18 September 1963, W. W. Keeler wrote a Letter to the Indian Claims Commission, referring to the matter of the attorney fee to be fixed and allowed in the aforementioned Cherokee Case, Docket No. 173-A, it was stated: . . . [T]he Cherokees were called in Conclave in June, 1948, to elect an Executive Committee to elect an Executive Committee to select the attorneys and to take any other actions deemed appropriate in behalf of the Cherokees. I was elected one of the members of the first Executive Committee. At its first meeting, held on the same day as the Conclave, the matter of claims was discussed in detail. A group of attorneys to represent the Cherokees of Oklahoma in all claims before the Claims Commission was decided upon and the contract discussed. Our Committee was very happy that the Claims Commission Act provided an opportunity to consider all claims by Indian Tribes against the Government. I remember quite well that the statement was made that we would be perfectly willing to have a contingent fee of 10% because it was substantially smaller than that which attorneys had been willing to consider in the past. It was conceded to be especially favorable to our Tribe because the attorneys were agreeing to carry on the fight at their own expense. The only other member of that first Executive Committee still living is Mr. C. C. Victory who confirms my recollection of this discussion. . . . At no time was there any objection to the agreement that I have described. . . . The Keeler/Victory account does not disclose the concerns the Keetoowah Society, Inc., among others, raised about the way the entire business of that "Conclave" proceeded. Note that this was the first occasion in which W. W. Keeler is seen playing a visible role in Cherokee or Keetoowah affairs. Compare this historical fact with Ross O. Swimmer's contentions in letter to various persons from 27 April 1979 and 3 May 1990. In 1964, Virgil N. Harrington, Area Director, echoing the report of his predecessor, wrote to the Commissioner, concluding that: The Cherokee Tribe is not organized in any form of corporate entity. However, on July 30, 1948, following authority of your office and proper public notice, a Convention of duly enrolled Cherokees, by blood, in Oklahoma, was held in Tahlequah. At this Convention, the Cherokee Tribe adopted certain motions and Resolutions. Copies of Resolution No. 2, adopted at this 1948 Convention which sets out the purposes of the Convention, were transmitted to your office, along with Resolutions 1 and 5, adopted at this Convention, with our letter dated September 16, 1948 (copies herewith). Your letter, dated November 9, 1948 (copy herewith) advises. . . . "it does not appear that it will be necessary for this office to take action on the Resolutions at this time." Copies of Resolution No. 3, which directed and authorized the Chairman of the Convention to appoint a permanent Standing Executive Committee of the nine members empowered to exercise during recess any and all powers that this or any other assembly of duly enrolled Cherokees by blood in Oklahoma could rightfully do in regular assembled convention, were submitted to your office on August 23, 1948, in connection with the contract for employment of attorneys by the Cherokee Tribe to prosecute claims against the United States.(Letter, November 12, 1964, Virgil N. Harrington, Area Director, to Commissioner of Indian Affairs; emphasis added) Area Director Harrington cited these actions of establishing the Executive Committee, along with the Act of August 20, 1964, P. L. 88-461 (78 Stat. 559), in reaching the following finding: We consider those tribal actions were adequate, with the approval of these Resolutions by the Secretary of his duly authorized representative, to constitute the Executive Committee as the representative body of the Cherokee Nation or Tribe of Oklahoma in all Cherokee tribal matters. However, even as late as 1964, the Commissioner or Secretary still had not approved these Resolutions. Also, Harrington's files disclose that he knew the Cherokee Nation was found incapable of reorganizing as such under the OIWA and IRA, based on a determination by the Director of Lands [(MEMO TO INDIAN ORGANIZATION, 25 October 1937, from Director of Lands (WDW) to Daiker, Indian Organization (163618)] Harrington had made a note to file on this particular Memorandum dated 6 December 1962. No wonder he did not press the Principal Chief to reorganize. He realized that it would probably take congressional action to address this problem. Though the Cherokee Nation Convention of 20 July 1948 was an unmitigated disaster, as far as Keetoowah Society, Inc.'s relations with Cherokee Nation were concerned, the actions of the Convention had no effect on the status of Cherokee Nation with respect to the Curtis and Dawes Acts, or with respect to the reorganization either of the Cherokee Nation or of the UKB under OIWA and IRA. The Keetoowah Society, Inc., saw the writing on the wall, and characterized the implications as to their own organization's future in a letter to Milam: Charges are being filed against you as having used the office of Chief as appointed by the Government, to weaken or destroy the function of the Keetoowah Society Incorporated. The are also being charged with attempting to deprive the Keetoowah Society Incorporated from receiving benefits to which they are entitled under provisions of Act of Congress in which this Keetoowah Society Incorporated has been recognized as a Band of the Cherokee Indians, and are entitled to certain benefits and privileges as such. If you care to defend yourself, or justify your actions, Keetoowah Society Incorporated Council will be in session Monday, August 9, 1948, at Radium Springs, Salina, Oklahoma.(Letter, 3 August 1948, Levi B. Gritts, Acting Secretary, Keetoowah Society, Inc., to Mr. J. B. Milam) The Keetoowah Society, Inc., publicly protested the manner in which the organizers advertized and conducted the meeting, and challenged the entire proceeding as null and void, even though C. C. Victory was appointed to the Executive Committee.(*: IV; Resolution, 13 August 1948, Keetoowah Society, Inc., at Jay, Oklahoma) On 17 August 1948, the Muskogee Times-Democrat (p. 12) reported the Keetoowah Society, Inc.'s, condemnation of the actions and Resolutions of Cherokees in Convention, particularly the seating of the Executive Committee: The resolution attacking the Tahlequah convention asserted that only a few Cherokees had been notified . . . [and] that no voice had been given the majority of those present, principally full bloods, in the nominations and elections at the convention, and that Gritts had been ruled out of order in his attempt to have a convention chairman, secretary and committee nominated from the floor. [17 August 1948, the Muskogee Times-Democrat (p. 12)] Senator Elmer Thomas, and congressmen Stigler and Schwabe received copies of the Society's resolution. The final schism between the appointed Principal Chief of Cherokee Nation, Jesse B. Milam took place at the Society's meeting, when the Keetoowah Society, Inc., retaliated for their leaders' humiliation at the Cherokee Convention by voting unanimously to expel Jesse B. Milam from the Society: Expulsion of Milam was based on charges of "attempting to weaken or destroy" the principles on which the Keetoowah organization was founded and attempting to "deprive the Keetoowah" membership of rights and benefits to which the organization was entitled under an act of Congress as a recognized Cherokee band, Gritts said. The Society scheduled an anniversary celebration on 20 September 1948 for the granting of the U. S. charter to the Keetoowah Society, Inc. Daniel E. Murphy, Acting Superintendent at Five Tribes Agency, notified Acting Commissioner Zimmerman of this wrinkle on 18 August 1948.(*: IV) Murphy complained that the Society had not extended the courtesy of an invitation to the meeting to any Agency employee, and that none had attended. Of course, Acting Commissioner Zimmerman ignored the Keetoowah Society, Inc.'s protests regarding the Cherokee Nation convention, probably because he already understood that the Keetoowah Society, Inc., did not represent or lead the UKB government. On October 4, 1948, Principal Chief Jesse B. Milam of Cherokee Nation plaintively wrote to Acting Commissioner Zimmerman, asking "whether or not your office has approved of our meeting held in Tahlequah sometime ago."(*: IV) Again, Zimmerman saw no need to respond, since the Department clearly did not intend to extend formal approval to the Resolutions from the July 20, 1948, Cherokee Convention. On 25 August 1948, the UKB met at the Tahlequah Court House to write another appeal for the approval of a UKB Charter.(Letter, 28 August 1948, Chief/Rev. Jim Pickup to W. O. Roberts, "Union Agency," in Fort Worth NARA) Their letter to Roberts about the August 25, 1948 meeting explained formal resolution requested Secretarial approval of a Charter allowing them to organize under OIWA/IRA. They voted to meet on 15 September 1948 at the Superintendent's office in Muskogee. The Keetoowah Band sent the transcription of their proceedings and adoption of resolution with a cover letter by the Chief to Congressman Stigler (*: IV; File # 21428): We who have been reorganized group, and it has functioned ever since it has been organized as a group June 9, 1939, we feel like we are entitled to a charter. Since we have organized we feel that we have been recognized as a group of Cherokee Tribe of Indians. We ask you to give this application attention, please, that we request you in the future in this matter as the union agency of Muskogee, Oklahoma. We have been organized under the Common Welfare Act June 26, 1936. We are asking under the provisions of Sec. 1. the following provisions of the Oklahoma Welfare Act, of the Indian Reorganization Act of June 18, 1934 (48 Stat. 784) as modified as applicable to Oklahoma and should be considered in connection with the provisions of the Oklahoma Welfare Act. Residing in Oklahoma, we the United Keetoowah Cherokee Band of Indians in Oklahoma, we are all Dawes Commission enrolled Cherokee Indians as Council of the group, are the undersigned, the following names, with our Chief and representatives of the group of the United Keetoowah Cherokee Band of Indians in Oklahoma. Signatories, representing some 6,000 Keetoowahs included Ben F. Smith, John B. Sixkiller, Nelson Toolate, Ben Birdchopper, Richard Henson, N. J. Crawford, William H. Peak, Joe Hitcher, Jack Wolfe, John Hitcher, James O'Field, John Snell, Dave Standingdeer, Jackson T. Wolfe, John Flute, John Bolyn, Charles Watt, John Cochran and Chief Jim Pickup. Stigler referred the request to Acting Commissioner Zimmerman (*: IV; Letter, 14 September 1948, File # 21428), with a request that the Commissioner return the enclosures to files as soon as they had served their purpose. On 29 September 1948 (*: IV; File # 21896), Superintendent Roberts sent Acting Commissioner Zimmerman a set of documents including: Resolution No. 1. In a letter of 15 September 1948, addressed to the Superintendent, which transmitted a resolution of the United Keetoowah Band of Cherokee Indians in Oklahoma for their proper recognition as a Band of Indians. . . . signed by Rev. Jim Pickup, Chief, and John A. Cochran, Secretary . . . and by the council members present, . . . ; as well as Resolution No. 2 of 20 September 1948 (*: IV; File # 21896), certifying approval by the Council and Assembly of the formal organization of the Tribe under a constitution and by-laws for the continuation of the organization; and, Resolution 3 of the same date, transmitting a notice of the 9 June 1939 election adopting the constitution and by-laws; and finally, Resolution 4 of the same date, transmitting the Constitution and By-laws as adopted on 9 June 1939. Petitioning for recognition of those documents by the Secretary, the UKB asked again for organization under a proper charter signifying such recognition under OIWA, the Act of June 26, 1936. The United Keetoowah Constitutional Committee had consisted of Daniel Hummingbird, John Muskrat, John Flute, Wilson Hummingbird and Ben Birdchopper. Signatories of the resolutions included: John A. Cochran, Secretary; Charles Watt; John Bolyn; Dave Standingdeer; Ned Crawford; Benjamin Smith; John Ketcher; William Peak, Rev. Jim Pickup, Chief; John Flute; Richard Manus (still, in 1993, representative of Goingsnake District, on the UKB Council); Benjamin Birdchopper; Richard Henson; John Snell; and John B. Sixkiller. In his cover letter, Roberts said: There is evidence in the writings of the United Keetoowah Band of Cherokee Indians that the Constitution and By-laws were submitted to the Indian Office after the vote on 9 June 1939, indicating the desire of the group for recognition. It appears that due to the lack of legal authority the Department withheld its approval. The United Keetoowah Cherokee Band of Indians of Oklahoma, according to their decision on the 15th of September 1948, say that all legal requirements for organization are now available and that the constitution and by-laws that were to voted upon, are accepted by the Band, and may be properly approved and that the organization may function in full recognition of the Department's consideration and approval. This matter is submitted to the office with the recommendation that it be approved.(*: IV; Letter, 14 September 1948, File # 21428) Very reluctantly, Roberts went through the motions of cooperating in the completion of UKB organization. Roberts's real sentiments are perhaps most apparent in the a peculiar statement of W. W. Keeler's, in his account to Levi Gritts about the first Executive Committee meeting Keeler attended in Muskogee on 3 September 1948: I am told that the only group that the Indian Agency will recognize is this Executive Committee, even [though] your Keetoowah Band was previously recognized by the Government. I have no interest in any way in this matter from the standpoint of personal gain. I have a good job and it would be against the best interests of my company for me to get involved in politics. . . . I agree with you that the Cherokees should be permitted to elect their own representatives, but that was not done. Now that we are on this committee, I feel that the least we can do is find out how we can best serve the Cherokee people. For instance, why shouldn't a committee from the Keetoowah Band tell us what the problems are, rather than have Mr. Roberts of the Indian Agency or our legal group direct us.(Letter, 30 September 1948, W. W. Keeler to Levi Gritts). This was not the last, or the most significant, of Keeler's letters to Gritts. On 6 October 1948 (*: IV; File #'s 5993-47, 21573-47 and 21428-48), Acting Commissioner Zimmerman wrote to United Keetoowah Band's Chief Jim Pickup, still asserting confusion on the matter of Keetoowah organization, given the continuing manifestations of Keetoowah factionalism, in the form of smaller groups operating under the names of the Keetoowah Society, Inc., the Night Hawks, the Seven-Clan Society, the Medicine Society, and others, adding: We know that a Keetoowah organization was incorporated under state law in 1905 and that earlier, about 1859, the Indians calling themselves Keetoowah, adopted a written constitution, using Sequoia's alphabet. Since those days, the group which started out as one body has been split into a number of smaller groups and has operated under different names, such as Keetoowah Society, Incorporated, the Night Hawks, the Seven-Clan Society, the Medicine Society, and perhaps other organizations as well. The 1946 law makes no provision for organizing separate groups of Indians calling themselves Keetoowahs but authorizes "The Keetoowah Indians of the Cherokee Nation of Oklahoma" to organize under section 3 of the Oklahoma [Indian] Welfare Act. For the moment, I see no way of proceeding with your request for a charter. It will be necessary for the Keetoowah Indians to agree among themselves on a list of members which should include all persons, regardless of the group to which they belong, who can rightfully claim to belong to the Keetoowah Indians. Superintendent Roberts is aware of this difficulty and has been trying for more than a year to work out a solution. We are awaiting a further report from him. Thus, Zimmerman laid on Roberts and on the Band itself the responsibility of reining in the factions so that the roll could be approved, so the Charter and other organic documents could stand. On 12 October 1948 (*: IV; File # 23273), Superintendent W. O. Roberts advised Acting Commissioner Zimmerman of the receipt of a copy of the Commissioner's October 6, 1948 letter to Rev. Jim Pickup (*: IV; File # 21428-48). Roberts disagreed in part with Zimmerman, saying, "it is also true that the Keetoowah Society held an election in 1939 for President of the organization, at which time the organization was fairly well united." The Superintendent and the Commissioner concurred, however, in finding that "Night Hawks, The Seven Clan Society, The Medicine Society and others were never seriously considered a part of the Keetoowahs in recent memory," adding that the Keetoowah Society, Inc., had an unknown population, while the United Keetoowah Band had been operating under a cohesive constitutional government for years. Roberts wrote: At that election, the candidates were Levi Gritts and John Hitcher. John Hitcher was elected, whereupon the defeated candidate declared his intention of withdrawing from the organization and taking as many followers as he could. President Hitcher continued for a few months until his death, holding the main body of the organization together under his leadership. The Rev. Jim Pickup was Assistant or Vice President, and acted as President until the next regular election, whereupon he among others was a candidate for the office and received a majority of the votes cast. The membership of the United Keetoowah Band of Cherokee Indians is known to number more than 1500 names. No one has been able to get an estimate of the following of Levi Gritts. As a matter of fact, numerous and extensive inquiries fail to disclose any following. Incidentally, Mr. Gritts calls the organization to which he belongs the Keetoowah Society, Incorporated. He claims to be Vice President. It may also be stated that Mr. Gritts declines to affiliate in any way with this office, allegedly because the Five Tribes offices successfully prosecuted him some years ago for fraudulent disposition of another Indian's land and keeping the proceeds.(*: IV; Roberts to Zimmerman, 12 October 1848, File # 23273) On 25 February 1921, an anonymous "Loyal Cherokee" wrote to Secretary of the Interior John B. Payne alleging that Gritts had served five years for a forgery conviction.(Letter, 25 February 1921, "A Loyal Cherokee," to Secretary of the Interior John B. Payne; Leeds 1992: 31) Gritts had infuriated the Agency when he promised Congressman Stigler a detailed report on their malfeasance.(Letter, 21 September 1945, Levi Gritts to Congressman Stigler; Leeds 1992: 31) Roberts recommended that the Commissioner simply ask Jim Pickup for a copy of the United Keetoowah Band's membership list and get on with the organization process: I think that the United Keetoowah Band is quite willing to submit to you an authenticated list of names of those Indians who consider themselves members of this organization. Would it not be practicable to write the President, Mr. Pickup, to this effect? Of course, it will be impracticable to get all of the Cherokees to agree. There are some who prefer to affiliate with the Keetoowah Society, Incorporated, though this office can show no evidence to substantiate such conclusion. Neither Mr. Gritts nor the Attorney who has represented him is able to show, or at least willing to show, any basis of membership or other affiliation with their organization.(*: IV; Roberts to Zimmerman, 12 October 1848, File # 23273) Earl Boyd Pierce's continuing role in the organization of the UKB apart from Cherokee Nation under H. R. 341, P. L. 79-715, August 10, 1946, included facilitating the transmission of the roll of the UKB to Assistant Commissioner D'Arcy McNickle, following a meeting of the two at the Denver convention of the National Congress of American Indians on 14 December 1948.(Letter, 15 January 1949) Whether his intentions included finding a way to use the Band eventually as a vehicle for restoring Cherokee Nation is not apparent from these documents. Pierce continued to treat the UKB as a distinct client, albeit pro bono, notwithstanding approval of his contract to be a Cherokee claims attorney at the Cherokee Convention. Of course, he realized that there were other groups with their own retained counsel for the purposes of achieving Section 3 recognition under OIWA, separate from Cherokee Nation. On the counsel of Earl Boyd Pierce, Chief Keeler continued to cultivate his relationship with Levi Gritts, Pierce's old nemesis, by continuing to correspond and to meet with him. In a letter of 10 March 1949, Keeler suggested that Rev. Jim Pickup "would back down as head of the United Keetoowahs if it meant a united front and Government recognition," and that he intended to accept the invitation to attend the 15 March 1949 UKB meeting in Tahlequah. Keeler discussed the Executive Committee of the Dawes Enrolled Cherokees: I feel sure that this present Government organized Executive Committee of the Enrolled Cherokees will recommend that the Keetoowahs be recognized.(Letter, 10 March 1949, W. W. Keeler to Levi Gritts; Anna Gritts Kilpatrick, Secretary, UKB). Then Keeler said something truly remarkable about the UKB, over a year before their reorganization was complete: I, for one, would be willing to go a step further and recommend that the present Executive group be dissolved and the Keetoowah organization be the sole representative with the Government of the Cherokees of Oklahoma, provided the Texas Cherokee group could still remain a separate entity in their claims against the Government. This line of thinking has gotten me to the point that I think maybe the present Executive Committee shouldn't sponsor the "Cherokee Foundation," but that it should be something started by the Keetoowah organization (all Keetoowah groups united, of course).(Letter, 10 March 1949, W. W. Keeler to Levi Gritts; brackets inserted; Anna Gritts Kilpatrick, Secretary, UKB) Keeler already had been discussing the Cherokee Foundation notion with Earl Boyd Pierce, to help needy Cherokees and to preserve language and culture. This tax exempt organization would be able to take money from Indians and non-Indains alike. Keeler obviously felt the best idea was for the Keetoowahs to start the Foundation, since they had recognition as a tribe, and C. C. Victory, Milam and Keeler all believed that Cherokee Nation would be completely terminated within a short time.(Leeds 1992: 47-48) This was a passing fancy, because the Cherokee Foundation was incorporated free of ties with the UKB on 3 March 1952.(Leeds 1992: 48) Hoever, all of them realized that many tribes would not be terminated in the forseeable future, due to Zimmerman's classification of groups' readiness to be terminated. They figured that the UKB would stay comfortably in the last category for many years to come. Chief/Rev. Jim Pickup and the UKB continued to participate actively in the affairs of the Cherokees and the Five Civilized Tribes. The UKB met on 15 March 1949 to select UKB delegates to a meeting Superintendent Roberts had convened of the Five Civilized Tribes. The UKB delegates were Richard Manus, Ned Crawford, Daniel Hummingbird, Ellis B. Sanders, John Cochran, Rev. Jim Pickup, Ben F. Smith, William Peake and J. B. Sixkiller.(Letter, 17 March 1949, Rev. Jim Pickup to Superintendent W. O. Roberts) Characteristically, Pierce intervened to eliminate the risk that the UKB would have any representation on the National Executive Committee, putting Pickup into the position of Chaplain to the Five Civilized Tribes. Pickup ended up being Chaplain both to the Cherokee Nation Executive Committee and to the Five Tribes. Pierce figured the best way to manipulate a preacher is to find a way to keep his head down and his eyes closed.(Letter, 21 March 1949, Earl Boyd Pierce to Superintendent W. O. Roberts; Leeds 1992: 47) The Indian Service continued with its rehabilitation plans for the Five Civilized Tribes. While the UKB had made selections of their representatives to the Five Civilized Tribes meetings, Superintendent W. O. Roberts preferred that the Executive Committee of the Cherokee Nation make the selection for the Cherokees. Earl Boyd Pierce dictated a letter to Superintendent Roberts in the presence of Chief Jim Pickup about the matter, saying: Mr. Keeler will call the Cherokees together within the very near future and you will remember that the United Keetoowah's are fairly well represented on the National Executive Committee. However, should your office think it proper, it would be well for the persons selected by the Keetoowah's to be notified of the meeting and be given an opportunity to attend and express themselves. For after all, they are full-blood Cherokees and are keenly interested in the development of any program calculated to solve their problems.(Letter, 21 March 1949, Earl Boyd Pierce, Esq., to Superintendent W. O. Roberts, Fort Worth NARA) The Keetoowahs reiterated their desire for completion of reorganization, in order "to be fully recognized under the special Keetoowah Act of Congress." The Keetoowahs reiterated their claims over their own "domestic relations," in such things as preventing the further relinquishment of restrictions upon restricted Indian land, maintaining restrictions upon lands of deceased restricted Indians, advancing rehabilitation of restricted Indians in the areas of educational loans, making land, home and business purchases, and advancing their general social betterment. They also sought cooperation from the State of Oklahoma in preventing the needless erosion of individual restricted land holdings, under the State Welfare Commission's prevailing policies regarding old-age subsistence, which required restricted Indians to dispose of allotments on which it was not practical for them to live. Pierce telegraphed to Roberts that this statement was contradictory to Pierce's own earlier representations that the UKB's ideas of their future as a sovereign tribe was very limited, when he added, "Rev. Pickup is listening to me dictate this letter and he has suggested that it may be treated as a direct communication from the meeting in respect to the matters and things mentioned;" loosely translated, it appears Pierce was telling Roberts, "There are certain Parties acting in behalf of my Client, the UKB, over whom I can presently exercise very little fiduciary control." It is not entirely improbable that Chief Pickup had decided to keep a closer eye on Mr. Pierce and Pierce's representations regarding the UKB. The perceived plan of the Agency and the Cherokee Nation attorneys, Principal Chief and his Executive Committee to control the Cherokee fullbloods by creating a restricted role for the UKB was going to fail, if the Rev. Jim Pickup and the UKB could help it.(Recall the Memorandum of Discussion in Office of Mr. Earl Boyd Pierce, 10 February 1948, by Superintendent of Five Civilized Tribes Agency W. O. Roberts, in Fort Worth NARA) In 1949, the Cherokee Nation or Tribe Executive Committee selected W. W. Keeler as Vice-Chair., and appointed Chief Pickup to be interpreter.(Leeds 1992: 38) Milam died in 1949. The usual procedure for selection of a new Cherokee Nation Principal Chief was that the Superintendent would send a short list of his candidates to the Secretary, who would forward his own pick to the President, but the Executive Committee unanimously supported Keeler, the Phillips Oil Company executive.(Letters, 17 and 20 June 1949, Superintendent W. O. Roberts to Commissioner William Zimmerman, Jr.; Leeds 1992: 39) UKB LAND ACQUISITION RIGHTS, OIWA AND THE ACT OF AUGUST 10, 1946 CNO has argued that because CNO has managed to acquire a land base, the UKB cannot be sovereign because the Band lacks a Federal trust land base. However, the UKB's inability to acquire a trust land base is no fault of the UKB. Among the most important provisions of the 1950 Charter was under Section 7, "Corporate Rights and Property," dealing with unallotted lands: The Band onwership of unallotted lands, whether or not occupied by particular individuals, is hereby expressly recognized. In approving this language, the Secretary of the Interior assigned the remaining unallotted lands of the Cherokee Nation to the UKB, even though this move appears to contradict the 25 October 1937 Solicitor's Opinion in that regard, because the UKB omitted freemen and intermarried whites.(See also Leeds 1992: 44) Even after Termination, the BIA, CNO and the Band's own legal counsel, Earl Boyd Pierce, prevented the Band from acquiring trust land, despite the Band's tireless efforts between 1946 and the present. According to the findings of the American Indian Policy Review Commission: Even though the . . . (OIWA) specifically authorized the Secretary of the Interior to buy lands through the revolving loan funds in IRA for the Oklahoma tribes and put them in trust, it does not appear that 1 acre of nontrust lands have been put in tribal ownership under the provisions of the Act. No moneys have been appropriated to the Bureau of Indian Affairs Anadarko Area Office for fulfillment of that provision of OIWA. . . . Add to these problems the assertions of tribal leaders that service population figures are too low, and you see that the tribes have very little chance to become self-sufficient. Moreover, the effect of some State laws is to force still more land into fee status through partition actions as a result of fractionated heirship. Likewise, Indians in Oklahoma are subjected to State probate laws where non-Indians are not, there being no rational basis for this discriminatory treatment. So numerous are the special laws granting the State of Oklahoma special rights over Indians that Felix Cohen devoted a separate chapter to it in his Handbook of Federal Indian Law. Finally, few of the tribes have land acquisition and consolidation programs because they simply do not have the resources. Also, the Secretary of the Interior has the authority to place land in trust when it is acquired by the tribes, will be place land in trust when it is acquired by the tribes, yet the Department has established a policy that land, generally, will be placed in trust only with specific congressional approval.(AIPRC, Final Report, pp. 524-525) Therefore, the refusal of the BIA to place land in trust for the UKB, or to allow the UKB to use revolving loan funds as stipulated in the OIWA to acquire a tribal trust land base, was simply consistent with the general policy. While most of the tribal lands of Cherokee Nation were allotted under agreements with the U. S. (namely the Act of March 1, 1901, ch. 675, 31 Stat. 848, as supplemented by Act of July 1, 1902, ch. 1375, 32 Stat. 716), most of the allotments remained inalienable and nontaxable for prescribed periods (Act of March 1, 1901, ch. 675, para. 11, 31 Stat. 848, 850, and Act of July 1, 1902, ch. 1375, Secs. 13-15, 32 Stat. 716, 717). Thereafter, Congress removed all restrictions on allotments of members of the Five Tribes possessing under 1/2 Indian blood (Act of May 27, 1908, ch. 199, Secs. 1, 4, 9, 35 Stat. 312, 323, 315; Act of May 10, 1928, ch. 517, Secs. 1, 2, 4, 45 Stat. 495, 496, amended by Act of May 24, 1928, ch. 733, 45 Stat. 733; Act of Aug. 4, 1947, ch. 458, Secs. 1, 6, 61 Stat. 731, 733; Act of Aug. 11, 1955, ch. 786, Secs. 1, 5, 69 Stat. 666, 669. Indians could obtain trust allotments under other legislation (Act of Aug. 4, 1947, ch. 458, Sec. 6 (d), 61 Stat. 731, 733; 25 U. S. C. Secs. 334, 336, 412a, 501) The restriction period on allotments of descendants of the Five Tribes of 1/2 blood or more was extended (Act of May 10, 1928, ch. 517, Secs. 1, 2, 4, 45 Stat. 495, 496, amended by Act of May 24, 1928, ch. 733, 45 Stat. 733; Act of Aug. 4, 1947, ch. 458, Secs. 1, 6, 61 Stat. 731, 733; Act of Aug. 11, 1955, ch. 786, Secs. 1, 5, 69 Stat. 666, 668. Later, this narrative discusses the reasons the UKB was never able to avail itself of its rights to land acquistion. Between 1936 and 1940 the U. S. acquired lands for the Cherokee Tribe, to be held in trust for a tribe that organized under OIWA and IRA. These lands were in Kenwood (Delaware County), Candy Mink (Adair County), Rocky Ford (Cherokee County), and Grand River (Yonkers, in Mayes County). Chief Pickup (on 1 May 1949) and Sam Hider were Cherokee Trustees for the land.[Letter, C. C. Marrs for Paul Fickinger, Muskogee Area Office, BIA, 18 September 1957, "Report on Status of the Cherokee Rehabilitation Projects," to Assistant Commissioner of Indian Affairs (Resources); Leeds 1992: 54] This matter became important during and after the Termination Era. On 14 March 1949, Acting Commissioner Zimmerman wrote to Senator Robert S. Kerr, informing him that Eli Pumpkin and Rufus Prichett of the Seven Clans Society wished to meet with the Senator to discuss "problems of organization and economic rehabilitation": 1. By the Act of August 10, 1946 (60 Stat. 976), the Keetoowah Indians, of which the Seven Clans Society is a faction, are recognized as a band for the purpose of organizing under the Oklahoma Indian Welfare Act. We have had some difficulty in determining the membership of the Keetoowah Indians but I believe that problem is now solved and we can proceed with forming an organization. 2. A number of Indians holding allotments of land in trust have expressed a willingness to transfer their land to the organization proposed in No. 1, to be held in trust by the United States for the organization. This step would preserve the inalienability and tax exemption of the lands. 3. If the individual allottees transfer their lands in the manner suggested, the United States probably should cooperate by providing funds for land purchase in order to add to the land base. Obviously this would need to be a limited program and should be primarily designed to help the Indians of a greater degree of Indian blood who for some years to come will need special help and protection. Under present law, trust restrictions must be removed from the lands held by the original allottees upon the death of the allottees. The lands are then merchantable and they are passing out of Indian ownership too rapidly. This critical memorandum was entirely consistent with Commissioner Zimmerman's subsequent Letter of 17 March 1949, to Eli Pumpkin of the Seven Clans Society, regarding the UKB's right to acquire a federal trust land base, or Reservation, within the boundaries of the Old Cherokee Nation, in Oklahoma's northeast counties.(*: IV; File # 6241) Acting Commissioner Zimmerman reviewed the problem of Seven Clans Society's operations in a letter to Eli Pumpkin and Rufus Pritchett. He referred to their efforts to achieve separate recognition from Cherokee Nation and the UKB, and to obtain a separate tribal land base. He pointed out that the problem of determining the roll of the UKB had been resolved, and advised that the Seven Clans faction was part of the UKB. He approved the Band's desire to have a trust land base, composed initially of trust lands belonging to members who wished to transfer their interests to the Tribe. He added that if the members followed through on their intentions, that the United States "probably should cooperate by providing funds for land purchase to add to the land base, . . . under federal supervision and protection." Commissioner Zimmerman attempted to resolve the Seven Clans Society's questions about land acquisition and to persuade the Seven Clans Society to rejoin the UKB, in order to be able to form a UKB land base. These remarks clarify the Department's decision on the question, following the passage of the Keetoowah Act: There are two methods by which land still held in trust might be kept in Indian ownership. The first method would be to obtain some modification of the present law (Act of August 4, 1947, 61 Stat. 731) which requires that restrictions be removed from allotments upon the death of the original allottee. This office is studying that particular law and we hope to propose amendments in the present session of Congress. The second method would be to form an organization of the Keetoowah Indians, or possibly other cooperative groups. As provided in the Oklahoma Indian Welfare Act, allottees who join such organizations might then transfer their lands to the United States to be held in trust for the organizations previously formed. With respect to this second method, we are writing to Superintendent Roberts indicating that organization of the Keetoowah Indians can probably proceed on the basis of the roll of membership made up in 1939. It is my understanding that the members of the Seven Clans Society, of which you are the leader, placed their names on that roll, along with other Keetoowah Indians to form the United Keetoowahs. If this is not correct and if the Seven Clans Society are not now included among the United Keetoowahs I urge you to consider taking this step as the best immediate way of completing an organization. This document leaves no doubt of the Department's and Congress's position on this matter. Still, on 29 June 1949, Houston B. Teehee, a Cherokee attorney in Tahlequah representing the Seven Clans Society, wrote to Zimmerman requesting that the Assistant Commissioner "advise if . . . rules and regulations in this premise permit separate independent organizations within the same tribe of Indians." As the reorganization process continued for the UKB, Teehee pushed for a response from the Commissioner (see *: IV; Letter, 11 August 1949, Houston B. Teehee to Acting Commissioner of Indian Affairs William Zimmerman, Jr.), but made little progress. The answer, upon acknowledgment of the Seven Clans Society as a part of the UKB, was that separate reorganization was impossible without congressional authorization. In a letter dated 20 September 1948, Assistant Commissioner Provinse advised Teehee that under Section 3 of OIWA, and under Section 16 of IRA, "the intention seems clear that a tribe or band must organize as a unit, and the Solicitor has consistently so held." The exception which proved the rule was the United Keetoowah Band of Cherokee Indians in Oklahoma: A slightly different situation exists with respect to the Cherokee Indians since Congress, in the Act of August 10, 1946 (60 Stat. 976), provided that the Keetoowah Indians of the Cherokee Nation of Oklahoma shall be recognized as a band of Indians within the meaning of Section 3 of the Oklahoma Indian Welfare Act. This provision permits the Keetoowah Indians to organize apart from the Cherokee Nation as a separate band. The UKB, as a matter of law, was no longer a division of the Cherokee Nation, but a separate, autonomous recognized Band of the Cherokee Tribe. Seven Clans Society was a faction or splinter group of the UKB, since most, if not all, members of the Seven Clans Society had enrolled voluntarily with the UKB. Even after the UKB had completed reorganization, the Seven Clans Society and Four Mothers Nation pursued separation. Roberts continued to file letters with the Commissioner about the continuing divisions in the UKB.(*: IV; see File # 15179-50 and # 13675-50) The Seven Clans Society refused to join the UKB in reorganization, as did the "Nighthawk" Keetoowahs. Roberts asked the Commissioner to give D'Arcy McNickle the job of devising an approach for dealing with requests for organization from such groups (6 November 1950). On 7 December 1949, and again on 14 December 1950, Roberts advised the Commissioner further about the Seven Clans issue, enclosing a copy of the Seven Clans' proposed Constitution and By-laws from Eli Pumpkin, their acting Chief. Roberts said on 7 December 1949: It is noteworthy that this group adheres to the old pre-Christian view in religious matters and cannot therefore affiliate with the Keetoowah group because the Keetoowah Band adheres to Christian religious principles.(*: IV; File # 22971) McNickle responded that, under the Solicitor's Memorandum of 27 July 1937, Section 4 of the OIWA requires that membership in land management cooperative associations, of the type the Seven Clans Society wanted to form, must allow all Indians residing in the district to participate. McNickle suggested that the group incorporate under Oklahoma law, since there was no other way to help them.(*: IV; Letter, McNickle to Roberts, 16 August 1951) APPROVAL OF THE UKB CHARTER, CONSTITUTION AND BY-LAWS, 9 MAY - 3 OCTOBER 1950 The BIA and the Tribe resolved the UKB's preliminary roll problems in March 1949. Commissioner Zimmerman had advised Superintendent W. O. Roberts of his conclusion that the UKB had formed an acceptably inclusive roll in June 1939.(Letter, 23 March 1949, Acting Commissioner Zimmerman to Area Director W. O. Roberts; *: IV) He added that "the constitution tentatively adopted in June, 1939 should be revised as to its membership provision . . to show that the basis of membership is a roll, the existence of which is indicated by date a place of deposit and other identifying features." Zimmerman also suggested that "Additional provisions should be made for future membership, and for adoptions, specifying the conditions to govern, such as degree of Indian blood, descent, residence, or whatever is deemed proper. The right of membership should operate automatically within the limits set forth in the constitution rather than being left to the individual." The constitution should also cite the Act of August 10, 1946, as recognizing the Keetoowah Indians as a band eligible to organize in accordance with the Oklahoma Indian Welfare Act of June 26, 1936 (49 Stat. 1967).(Letter, 23 March 1949, Acting Commissioner Zimmerman to Area Director W. O. Roberts; *: IV) The certification of the United Keetoowah Band's roll followed, in the 19 April 1949, resolution, along with an amendment to the Constitution and By- laws of 9 June 1939, respecting membership, reducing the blood quantum requirement to 1/4 blood. Superintendent W. O. Roberts transmitted these 19 April 1949 resolutions under cover of a Letter to Acting Commissioner Zimmerman 28 June 1949, adding that he believed the UKB had met the Commissioner's demands, and that the full roster of both voting and non-voting members of the UKB, revised according to Zimmerman's instructions to include 1/4 bloods, with a card file covering the membership, was in the Five Tribes Agency Office. Roberts concluded: We would refer you to Office letter dated March 28, 1949 concerning the list of members who can rightfully claim to belong to the Keetoowah Indian entity. We conclude that the 1939 list complies with this requirement. John H. Provinse, Assistant Commissioner, responded to Roberts's Letter of 28 June 1949, on 29 July 1949 (*: IV), reflecting the Office's concern that the UKB membership roll was supposed to form the basis of organization, but that the roster did not distinguish between "voting and non-voting members." Provinse supposed that non-voting members might be intermarried non-Indians, but said, "If this interpretation is correct, it is probably a mistake to refer to such persons as members, even though qualified as non-voting. Membership ought to convey all rights, including the right to vote." However, other tribes do create classes of membership, and such distinctions did emerge within the UKB organization in time. Provinse also observed that the UKB Constitution and By-laws of 1939 had no legal effect at Federal-Indian law, because the authority for forming the UKB organization did not exist before the Act of August 10, 1946. Provinse directed that the UKB be informed of the need to make a revised Constitution and By-laws to meet the Secretary's guidelines. The Band had to incorporate by reference the Tribe's authority to organize under the 1946 Act, and include suggestions in the Department's Letter of 23 March 1949 (*: IV). Within the year following the creation of the Cherokee Nation's Executive Committee, W. W. Keeler was still getting oriented on Cherokee history and policy. Earl Boyd Pierce, the attorney now for the Cherokee Nation as well as the UKB, obliged Keeler by becoming his mentor, supplying him with Starr's classic History of the Cherokee Indians and Genealogy. The purported purpose of Pierce's letter was to discuss the prospect of forming a weaving industry for the tribe. However, the question of the leadership and organization of the Keetoowah Indians was the subject of much of the letter: In regard to the full-bloods, it is true there are several branches of the Keetoowahs organization. There is so much history connected with this matter that it can not safely be covered in a letter. Suffice to say, that the Keetoowahs are the real full-blood Cherokee Indians, and if it could be possible to bring all of their leaders together and discuss this projected picture face to face, I believe, this would be a long step in bringing those leaders to the point where they could work together in harmony. Personally, it should be immaterial to us who should head up the Keetoowah organization, for after all, as stated, this is, and of right, should be a full blood organization.(Letter, 1 March 1949, Earl Boyd Pierce to W. W. Keeler; emphasis added) Pierce himself was a full member with voting rights. However, his main point seemed to be that the UKB reorganization, if it took place, probably would be no business of Keeler's, as Principal Chief of Cherokee Nation, since the UKB would be a separately acknowledged tribe. Pierce continued: The factions in their groups are led by wise and determined men. Washington is advised of the situation and has been reluctant to officially recognize either group until their principal differences are reconciled. This statement was extremely misleading, in that "Washington," namely the Commissioner and Secretary, already had learned from the Organization Field Agents, the Superintendent, and various correspondents that the barriers to reorganization of the UKB had been resolved, and that the Keetoowah Society, Inc. (except for the meager following of Levi Gritts, the small separatist factions and the Stokes Smith Nighthawks) had merged to compose the UKB. Pierce admitted: Congress, a few years back, made provision for official recognition of the Keetoowah Cherokee Indians in Oklahoma. Congress did not specifically mention which group it desired to recognize. The group known as the Keetoowah Society, Inc., I think it properly can be said, was instrumental in securing, with the help and knowledge of the Indian Bureau, the passage of this legislation. It is presumed, however, that this activity was intended to benefit all Keetoowah Indians regardless of their membership in the Keetoowah Society, Inc. In most respects, these statements were true, except that correspondence in Pierce's own possession, and the history of the UKB from 1937 forward, proves that Pierce should have known the Keetoowah Society, Inc., had little to do with the passage of the 1946 Act, or in the reorganization effort from 1946 to 1950. Pierce continued: Now, there is another organization headed by Rev. Jim Pickup calling itself the United Keetoowah Band of Cherokee Indians in Oklahoma, and there is serious controversy concerning its original establishment, but knowing its leaders as I think I do, I am confident that concessions can and will be made, if such be necessary for the ultimate benefit of all full-blooded Cherokee people.(Letter, 1 March 1949, Earl Boyd Pierce to W. W. Keeler) Pierce was working directly with Chief Jim Pickup and certainly knew that the UKB was not just "another organization," but was the representative government of the united Keetoowah factions to which Pierce referred. Pierce was working directly with the UKB and Pickup in particular to perfect the organization, which happened in 1950. Pierce's mind was on another point; namely, the problem of persuading the Keetoowahs generally to bend to the will and leadership of the Principal Chief of Cherokee Nation in all things, for matters of administrative convenience, as well for the purpose of preventing any inter-tribal skirmishing in the process of resolving outstanding Cherokee claims. In this scheme, Levi Gritts was the loose canon, regardless what happened to the main body of the Keetoowah Society, Inc.; and if cultivating his friendship would help keep Pickup in line, so much the better: I mean to say, that should it develop that your plans for the weaving project depend in the future upon the conciliation of these groups into one officially recognized Keetoowah organization, that for the sake of the success of the project, the leaders of the latter group would be willing to compose their differences with the first and other groups and all stand together. And I also believe that you are in a position to approach Mr. Gritts and his associates upon the same proposition, and when he has had time to consult his council, I believe, that he will be agreeable to meeting with any other group of sincere minded Cherokees if the results could be expected to be of ultimate benefit to all the Cherokees. You may explore this matter further by [contacting] Mr. Gritts and getting his views on the matter.(Letter, 1 March 1949, Earl Boyd Pierce to W. W. Keeler) Pierce knew that it was important to make peace with Levi Gritts, if possible. President Gabriel Tarepen and Acting Secretary Levi Gritts of the Keetoowah Society, Inc., had led their remaining Keetoowah Society, Inc., followers in a renewed effort to obtain separate legislation to acknowledge their own organization after Levi Gritts lost the 9 June 1939 UKB Chief's election to Rev. John Hitcher. [Letter, 29 August 1944, Commissioner of Indian Affairs William Zimmerman, Jr. to Gabriel Tarepen, in Central Classified Files of the BIA, Department of Interior. Box 463. Accessions 56A-588. Records for 1948-1952. Five Tribes. 010. Legislation (011.-015.) File # 29941-44] Gritts and the Keetoowah Society, Inc., had formally battled the seating of the Cherokee Nation Executive Committee. The Keetoowah Society, Inc.'s expulsion of Principal Chief Milam from their fellowship in 1948 appeared to signify nothing. Pierce was working pro-bono for the UKB, directly with Chief Pickup. The Keetoowah Society, Inc., essentially dissolved by 1950 as an independent entity. However, years later, Gritts's estate sued for payment of his expenses incurred in advocacy for Cherokee claims. One rather peculiar wrinkle in UKB's role in the administration of CNO property occurred on 4 May 1949, when Chief Jim Pickup of the UKB became Trustee for the Cherokee Tribe of Oklahoma.(Letter, 4 May 1949, Five Civilized Tribes Superintendent W. O. Roberts to Rev. Jim Pickup, transmitting copy of Chief Pickup's appointment as Trustee for the Cherokee Tribe of Oklahoma) The letter covered a formal document that read: APPOINTMENT AS TRIBAL TRUSTEE I hereby appoint Jim Pickup as Trustee for the Cherokee Tribe of Oklahoma for a period beginning May 1, 1949 and ending May 1, 1951. The Department of the Interior understood clearly the role the UKB was supposed to play in the administration of the property of CNO. At a regular UKB meeting at Lyons Community House, seven miles southwest of Stillwell, Adair County, on 1 August 1949, with 319 UKB members present, the Council adopted UKB Resolution 1, authorizing and directing the Constitutional Committee of the UKB (consisting of Daniel Hummingbird, Ben Birdchopper, Jim Pickup, J. B. Sixkiller, Jack Wolfe and John Ketcher) to meet at Muskogee office of Earl Boyd Pierce on August 10, 1949. The Constitution Committee had the charge of redrafting the proposed Constitution and By-laws for final approval, and to continue from that point to act as a provisional council, and to appoint other temporary officers.(*: IV; UKB Resolution 1, 1 August 1949). On 10 August 1949, the UKB Provisional Council transmitted a proposed Constitution and By-laws to Superintendent Roberts in compliance with the Department's requests, amending the organic documents, and approving the "current, active roll of the membership" of the Band. For the purposes of initial organization, the Provisional Council had decided, at the end, to restrict membership to persons of 1/2 or more Cherokee Indian blood, based on data on the Cherokee Dawes Commission Roll, who resided in Oklahoma; and on August 12, 1949, Roberts transmitted the same to the Commissioner (*: IV; File # 17741, including the UKB and Roberts Correspondence regarding Proposed Constitution and By-laws of the UKB). Later, the Band expanded enrollment criteria to include persons of 1/4 or more Cherokee blood, and to adopt Cherokees who were neither on the Cherokee Dawes Commission Roll nor descendants of such persons. By late August, the UKB had learned that W. O. Roberts might be removed as Superintendent of Five Tribes Agency at Muskogee, and Chief Pickup protested this move (in a Letter, 24 August 1949, File # 43292-46- 068) to Acting Commissioner Zimmerman: He is one of the best men we had in fifty years, that Superintenendent [sic] Office. Perhaps, whatever the past difficulties and arguments, the UKB was happy with Roberts and fearful of the prospect of having to "break in" a replacement: Better to suffer the ills we have, "than fly to others that we know not of." However, it seems more likely the UKB thought that if they kept Roberts in place, while continuing to pressure him, they would have a willing ally in their reorganization efforts. Certainly, the fact that Roberts appeared to have career problems did not cause the UKB to change their tactics. After the Commissioner had resolved the touchy issue of the Seven Clan Society's competing claim to the right to land acquisition in Oklahoma, the UKB still faced the matter of gaining approval for the UKB Charter. Without an approved OIWA charter, the Tribe could not memorialize their intent to exercise their retained sovereignty as a sovereign tribal entity. In a letter of 10 August 1949, the UKB Provisional Council transmitted a proposed Constitution and By-laws (*: IV; File 17741). Assistant Commissioner John Provinse responded to the latest proposed draft of the Keetoowah Constitution, By-laws and Roll with specific recommendations for further clarification or modification regarding membership, the council membership and representation, vacancies, procedures for amending the constitution.(*: IV; Letter, 9 September 1949, Assistant Commissioner John H. Provinse to Superintendent W. O. Roberts, File # 17741-49) Regarding proposed corrections of wording on these points, Provinse said, "the Constitution and By-laws will be retyped and submitted to the Secretary for his approval and the calling of an election." The original Membership roll was to be subject to the Council's amendment within five years, and such amendments subject to secretarial approval. Thereafter, the Council was to have full control over membership decisions. The language describing the governing body was unclear, as to the issue of proportional representation. The Department also felt that decisions as to whether the basis of representation should be changed periodically should be in the hands of the Council, not the Constitutional Committee. The draft provided for 27 council members and four executive officers, without adequately explaining whether the officers were to be elected at large. The language addressing the filling of vacancies on the Council also was confusing and inconsistent. The amendment and adoption clauses needed specific revisions in order to draw them into conformity to the laws and regulations of the Department of the Interior.(*: IV; Letter, September 9, 1949, Assistant Commissioner John H. Provinse to Superintendent W. O. Roberts, File # 17741-49) There also were problems with the By-laws. Rights of members to vote and to serve on the Council required clarification as to whether a candidate for office had to be a resident of a particular district, and not just a registered voter there, to represent that district.(*: IV; Letter, September 9, 1949, Assistant Commissioner John H. Provinse to Superintendent W. O. Roberts, File # 17741-49) The Charter had to answer the question which governmental powers the Tribe possessed, for as Provinse observed: You will note that the Constitution and By-laws of the United Keetoowah Indians under consideration contain none of the usual powers that an Indian tribe may exercise and neither does it contain any of the grants of power contained in the Indian Reorganization Act. This results from the wording of the Oklahoma Welfare Act, which provides in Section 3 that any recognized tribe or band of Indians residing in Oklahoma may adopt a constitution and by-laws. However, the proper organic document in which an Oklahoma tribe must write down its "rights or privileges secured to an organized tribe" is not a constitution and by-laws, but a charter of incorporation that the Secretary of Interior may issue. Following this language, it has been customary to include in the charters issued to Oklahoma tribes all the powers vested in Indian tribes by existing law and any additional grants of power provided for in Section 16 of the Act of June 12, 1934. I therefore urge that the Keetoowah Indians take the additional step of adopting a charter of incorporation in order to complete their organization. I attach a charter issued to the Eastern Shawnee Tribe of Indians, Oklahoma, which may be used as a model but modified as may be necessary in order to meet the requirements of the Keetoowah group. The Secretary of the Interior will submit the charter to the adult members of the band for ratification upon receipt of a request by the Constitutional Committee, or upon a petition signed by at least one-third of the adult members of the United Keetoowah Band (*: IV; Letter, September 9, 1949, Assistant Commissioner John H. Provinse to Superintendent W. O. Roberts, File # 17741-49) September 22, 1949, Roberts advised the Commissioner of his receipt of the Constitution and By-laws for the UKB on September 12, 1949, adding that he had sent the Tribe their copies immediately: The officers, together with their Attorney, have examined the requirements as set out in your letter of September 9, 1949, and have replied thereto in a letter dated September 20, 1949, assessed to the General Superintendent of the Five Tribes Agency and signed by the Advisor-Attorney of the United Keetoowah, Mr. Earl Boyd Pierce. The letter bears the approval of the Rev. James Pickup, President of the Organization. The letter is forwarded to the Office for compliance with the last paragraph thereof and for such other suggestions as the Office may deem advisable.(*: IV; Letter, September 22, 1949, Superintendent W. O. Roberts to Assistant Commissioner John H. Provinse, File # 17741-49; also, Letter of 10 September 1949, Earl Boyd Pierce, cosigned by Chief Jim Pickup, to Superintendent W. O. Roberts) Very few members of the Band lived either in Coo-Wees-Coo-Wee or Canadian Districts of the old Cherokee Nation, and the Provisional Council had some concern about gerrymandering. The UKB had decided to provide that the Council would deal with proportional representation issues as needed. However, D'Arcy McNickle, Director of the Tribal Relations Branch, re- examined the proposed UKB Constitution and By-laws and attached correspondence, and found several important issues remained unresolved.(*: IV: Letter, 3 November 1949, McNickle to Roberts) McNickle required that a support resolution certifying the membership list appear with the list, and that the UKB address the problems of representation in the Council, and election procedures, as the Department had suggested earlier. Pierce was to prepare a draft Charter for the Secretary's approval, and forward this with the completed Constitution and By-laws, so that the Secretary could call an election. The Minutes of the UKB for November 16, 1949, at the County Court House at Tahlequah, reflect the Provisional Council's understanding of their situation. The Council acknowledged that: "the 1946 law makes no provision for organizing separate groups of Indians calling themselves Keetoowahs, but authorizes 'the Keetoowah Indians of the Cherokee Nation of Oklahoma' to organize under Section 3 of the Oklahoma Welfare Act." At the same meeting, the Provisional Council adopted a compilation for a tentative Charter, discussed plans for social and economic programs. Then Earl Boyd Pierce, the Band's attorney, discussed progress toward the prosecution of Cherokee Indian claims against the U. S., in which he represented the interests of Cherokee Nation as well as the UKB. By this time, Pierce was openly blurring the distinctions between Cherokee Nation's rights and powers generally, and the UKB's governmental rights. The UKB has reason to believe, based on copies of Pierce's correspondence in the Fort Worth NARA collections and elsewhere, that Mr. Pierce's conflict of interest, as the attorney for both Cherokee Nation and the UKB, led Pierce to circulate the story that the UKB only was created to be a loan agency for Keetoowahs. Pierce certainly knew better. When the UKB tried to get a loan program started, Pierce did little to aid his clients in getting the BIA's cooperation. Ben Birdchopper, of the UKB Council, inquired of Pierce: Here is concerning about the meeting we had last that we were to hear of the result in 20 days. And another thing is that our chief held a meeting in Kenwood Okla. week ago Sunday. His speech was about the loan that the Cherokees was allowed, but I thought things like these was supposed to be left up to our President. Since you are our atty, Dont you think our President should be informed of these things first. So I thought I would write and ask you about these things who is going to handle these things and who has a right to. So please answer soon.(Letter, 19 June 1950, Ben Birdchopper, Spavinaw, Oklahoma, to Earl Boyd Pierce) Pierce, as a matter of convenience, continued to duck the point that the UKB now had an approved Charter and Constitution and By-laws, waiting only for voter ratification. Upon approval of the OIWA/IRA election, the UKB organization would be the only authorized Cherokee tribal entity organized in Oklahoma to participate in Federal programs for OIWA/IRA tribes. In his response, erce admitted that participation in any UKB loan program would be open only to UKB members, and that Principal Chief W. W. Keeler would have to create some other organization to serve the broader purposes of Cherokees. Pierce opened with an attempt to advance Keeler as the sole authority over Cherokees in Oklahoma: You are advised that Chief W. W. Keeler has been appointed by President Harry S. Truman as the Principal Chief of the Cherokee Nation and as such he speaks officially for all Cherokees. Of course, this statement technically was true as to the general class of Dawes descendants, pending completion of the UKB organization process, but was no longer true as to members of the UKB following the 3 October 1950 UKB election. Pierce continued: As you are no doubt aware the Cherokee Nation is composed of several different groups of Indians including the United Keetoowah Band of Cherokees off which Rev. Jim Pickup is the President; the Seven Clans Society, headed by Mr. Eli Pumpkin, the Night Hawks and the Keetoowah Society, and Texas Cherokees. In 1946, Congress enacted a law permitting the Keetoowah's to organize under the Oklahoma Welfare Act, the Thomas Rogers Bill which will enable your group to secure various types of loans and other help where needed. I am in receipt of a letter this morning from Mr. Roberts going forward with the election which your committee requested in Tahlequah. You will be hearing more about this in a few days. After this election has been held and all the documents have been approved by the members of the United Keetoowah Group, then your organization will be permitted to establish itself for the purpose of approving loans to its own members when funds are made available for this purpose. It is hoped that part of the money included in the Stigler Bill now before Congress will be made available for loans to members of your group. There are many, many Cherokees who do not belong to your organization and probably never will belong, and it is believed that Chief Keeler will evolve a plan or