# United States Department of the Interior > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Aunited_keetoowah_cherokee%3A19867e57b3b898ca ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## Text United States Department of the Interior OFFICE OF THE SOLICITOR Washington, D.C. 20240 January 17, 2025 M-37084 Memorandum To: Secretary From: Solicitor Subject: Authority of the Secretary to Take Land into Trust for the United Keetoowah Band of Cherokee Indians in Oklahoma for Gaming Purposes within the Cherokee Reservation Introduction The United Keetoowah Band of Cherokee Indians in Oklahoma (UKB) is a federally recognized Indian Tribe comprised of Cherokee people with headquarters on the Cherokee Reservation in northeastern Oklahoma. In July 2022, UKB requested that the Secretary take into trust a 2.63- acre parcel of land in Tahlequah, Oklahoma. UKB intends to use the parcel for gaming purposes “to improve and advance the economic status of its members.”! This memorandum addresses the Secretary’s authority to take land into trust for UKB within the Cherokee Reservation, UKB’s status as a successor in interest to the 1846 Treaty with the Cherokee, UKB’s jurisdiction within the Cherokee Reservation, and the eligibility of that land for gaming. This is not the first time UKB has submitted a fee-to-trust application to the Department of the Interior (Department) for this parcel. In 2012, the Department approved a fee-to-trust application for gaming purposes filed by UKB. That approval was challenged in federal district court by the Cherokee Nation. In March 2020, the district court issued an opinion holding that the Department had authority to take the land into trust, but that we had not sufficiently established a basis for concluding the land was eligible for gaming under the Indian Gaming Regulatory Act’s exception for “former reservations” in Oklahoma. Relevant statutes and regulations have long referred to reservations in Oklahoma as “former reservations” because, for much of the last century, many Oklahoma Indian reservations were presumed disestablished. However, in the landmark McGirt v. Oklahoma decision issued in July 2020, the Supreme Court of the United States clarified that the Creek Reservation was never disestablished and remains ' Resolution 22-UKB-80, Authorizing the Submission of a Land in Trust Application for the 2.63 Acre Parcel for the United Keetoowah Band of Cherokee Indians in Oklahoma, a Corporation Chartered Under the Act of June 26, 1936 (May 7, 2022). intact. Subsequent state court decisions concluded that the Cherokee Reservation also remains intact. Accordingly, the Department withdrew its approval of UKB’s application and requested that the Tenth Circuit vacate the March 2020 district court decision so the Department could reexamine the basis of its prior approval in light of McGirt. The Tenth Circuit granted the request. I invited UKB and the Cherokee Nation to provide their views regarding “what rights and/or jurisdiction the United Keetoowah Band of Cherokee Indians may have within the Cherokee Reservation.”? In November 2022, both Tribes submitted extensive briefing, including expert reports and numerous exhibits. UKB’s position is that UKB is a successor in interest to the treaties signed by the Cherokee Nation under a test announced in the United States v. Washington litigation.? As a successor in interest, UKB asserts that it shares coequal jurisdiction with the Cherokee Nation over the Cherokee Reservation.* Cherokee Nation, by contrast, asserts that UKB cannot qualify as a successor in interest under U.S. v. Washington and subsequent case law.” The Nation claims a treaty right to exclusive Tribal jurisdiction over the Cherokee Reservation.© And Cherokee Nation argues that, because the act that allowed UKB to organize is silent on treaty rights, Congress could not have abrogated the Nation’s treaty right to exclusive Tribal jurisdiction.’ The facts and conclusions in this memorandum are based on the Tribes’ submissions and on independent historical and legal research. Although the Department has taken the position in the past that UKB is not a successor to the treaties signed by the Cherokee Nation or that the Cherokee Nation is the sole successor to those treaties, I am unaware of any in-depth factual and legal analysis underpinning those positions. Indeed, several of the Department’s past decisions on this subject are wholly conclusory.® Similarly, although courts have examined issues adjacent to the successor-in-interest question and have made statements in dicta about the successor status of either UKB or Cherokee Nation, the question of whether UKB is a successor to the treaties signed by the Cherokee Nation has never been squarely presented, briefed, and decided.’ In addition, all of the tangentially-related 2 Letters from Robert T. Anderson, Solic., to Chief Joe Bunch, United Keetoowah Band of Cherokee Indians, and to Principal Chief Chuck Hoskin, Jr., Cherokee Nation (July 8, 2022). 3 United Keetoowah Band of Cherokee Indians in Oklahoma, Response to M-Opinion Information Request from Robert T. Anderson, Solicitor, Bureau of Indian Affairs and Supplement to 2.63 Acre Land-in-trust Application for Gaming Purposes Submitted on July 12, 2022, at 3-6 (Nov. 11, 2022) [hereinafter UKB Submission]. 4 Id. at 5-6 (“As a successor, the UKB enjoys all treaty rights of the historical Cherokee Nation, including rights to and jurisdiction over the Cherokee reservation.”). > Submission of the Cherokee Nation Regarding Any Rights or Jurisdiction that the United Keetoowah Band May Have on the Cherokee Nation Reservation 120-23 (Nov. 14, 2022) [hereinafter Cherokee Nation Submission]. 6 Id. at 79-83. 7 Id. at 131-133. 8 F.g., Letter from Acting Reg’! Dir. to Phil Estes, U.S. Dep’t of Agric. (Apr. 19, 2002) (Cherokee Nation Ex. 91) (stating without justification or analysis that “UKB is not the Cherokee Nation nor does the UKB have any claim as a successor or have an interest as an entity of the Cherokee Nation”); Memorandum from Assistant Secretary — Indian Affairs to Muskogee Area Director (Oct. 26, 1984) (Cherokee Nation Ex. 80) (asserting that “the Cherokee Nation of Oklahoma, as presently constituted, to be the full successor to the Cherokee Nation of the first decade of this century” without even mentioning UKB). 9 E.g., Buzzard v. Okla. Tax Comm'n, No. 90-C-848-B, 1992 U.S. Dist. LEXIS 22864, at *13 (N.D. Okla. Mar. 3, 1992) (dismissing UKB’s suit on summary judgment because “UKB has failed to show any treaty or Congressional act establishing UKB’s ‘inherited’ right or claim to reservation land within the boundaries of the old Cherokee Indian Reservation” without any analysis of Cherokee treaties or the legal test for successorship); United Keetoowah Band of Cherokee Indians v. Mankiller, No. 92-C-585-B, 1993 U.S. App. LEXIS 31593, at *12 (N.D. Okla. Jan. 28, 2 decisions cited by Cherokee Nation in its submission to my office are unpublished orders that lack precedential effect.!° I thus approach this question as a matter of first impression. My office has taken more than two years to thoroughly research and analyze the relevant facts and legal precedents while also bringing to bear the Department’s considerable expertise in the area of federal Indian law. This memorandum represents my careful examination of a complex and difficult question. I conclude below that: e The Oklahoma Indian Welfare Act authorizes the Secretary to take land into trust for UKB. e The Cherokee Reservation is UKB’s reservation for purposes of the regulations at 25 C.F.R Part 151 (Part 151 Regulations) and the Bureau of Indian Affairs (BIA) may acquire land in trust for UKB within the Cherokee Reservation pursuant to the onreservation criteria of 25 C.F.R. § 151.9. This conclusion is based on my findings that (1) UKB has an ownership interest in the Cherokee Reservation as a successor in interest to the Tribal signatory of the Treaty of 1846; and (2) Congress intended for UKB to possess governmental jurisdiction over the Cherokee Reservation when it enacted the Keetoowah Recognition Act. e UKB has exclusive Tribal jurisdiction over its trust lands. Lands taken into trust for UKB for gaming purposes within the Cherokee Reservation qualify as “Indian lands” under the Indian Gaming Regulatory Act and are therefore eligible for gaming. 1993) (dismissing UKB’s suit on Rule 19 grounds while incorrectly stating that a previous case—UKB v. Secretary of the Interior—“decided that the Cherokee Nation is the only tribal entity with jurisdictional authority in Indian Country within the Cherokee Nation”). 10 Cherokee Nation Submission, supra note 5, at 133-37. 3 Table of Contents Background .........cccscsccscsscetseccscescescesceccecensssesssnesesscssssescsssscesoscessssessesseusessnceuseuseassssesseseessseaseneessesseneensansenses 5 A. Procedural History............scssccscscsesscscssccscesscsscsessasensesseeeseessessesesescssesesesssessssssesssssesssesensesseeeseenssengse 5 B. McGirt v. Oklahoma and Subsequent Legal Development ...............csscssecsessssssrectsensseseseseeesenens 5 C. History of the Cherokee People .......... cc ccssscsescsssscsscsscsssssscsscsscsscssuseensessscssssesseesseesseessenseseesseeneens 6 Early History ...ccccccsccscsscscssssscssssccsevseseseeseseesseessseeesceasssssessessessosssssseessesesesseeensseesseesesensesseasseeesseesgens 6 REMOVAL ....ccccccccscsessccsseeseceseesensssneesneesecsnsenscsscesceseesesessaceseseseesecesaeessesesesessescsssssssssssssesssesseeseeensescnes 7 The Civil War .ccccccccccssccsscsesssessssceessessccescssccsecseeseseseesseeseeseasensecescesseesesuseosescsssecssessuasssasensesnseensetens 9 The Keetoowah Society and Allotment.......c.cccsccscccsscssscssscensessscssscessesssesessscsssessscosssesesscesesseeeenes 11 TY ONSILION vo scccecccesccssccesccssceesscencssaevancsseesesesensesonsessessseesasssessssesssesseeessesssesessssonssesssensesecasensaeesesonsees 12 TWIQHE .o..cesccsccscesseccscescesceneesessecsseescssesssessosssssessssnsssssassessesecneeneeseeeeseesseuesteseesasaseassesssenesseseesnengs 13 The Indian New Dell ....scccscccscccssecsccscssscssacessesacccensessescseesenssasssesessssssssossecsseessessseceseesseesesnsseseoes 16 The United KeetoOwals .....cccccccccccsccsscssssscsssscsssecessesecssesneseasessecesensseasesesesessesssaseseesseesseesasesssonas 19 The Keetoowah Recognition ACE ....ssccscesesssscesseesessssesssssesscssssssssseesessenseessessesssssasseensenaseneenenenents 21 Perfecting the United Keetoowah Organization .....ccccccsccseecsescesseesceseeeesneeseeeseenssnsesesnsenneseeess 22 TWO Cherokee Tribes ..ccccccccccsccsssssscsscssssscccssscssessesaceecessceseeeesscesaeeseeesaesssesssssssoassoessoessenscneseneseeees 23 DISCUSSION ..........ccccsscccssssceseessenscssccssesscsscssesensssessensessesseesaesesseossessceseeseessesseessssnsassscsseesssessscessosssonsesseseenseses 24 A. OIWA authorizes the Secretary to take land in trust for UKB......... cc csscscessesetseesteonseeeeseerens 25 B. The Cherokee Reservation is UKB’s reservation for purposes of the Part 151 Regulations. ........ 26 1. UKB has an ownership interest in the Cherokee Reservation under the 1846 Treaty. .......... 27 i. The Treaty of 1846 secures the 1846 Treaty Cherokees’ ownership rights in the Cherokee RESErVatiONn...........csccssesscsscesscssceccssessscessscsseceesecesssescesseeaeesaeeacesecsseeseceeasssasssesesesesesseseseeesoes 29 ii. UKB is a successor in interest to the Cherokee Indians who signed the Treaty of 1846..31 a. UKB members descend from the Cherokee Indians who signed the Treaty of 1846.32 b. UKB has maintained an organized Tribal structure. ...............scsscsssosseeesseeeseeesneeseees 33 iii. The political cohesion standard from United States v. Oregon is inapplicable................. 40 2. In enacting the Keetoowah Recognition Act, Congress intended for UKB to possess governmental jurisdiction within the Cherokee Reservation. ............scscssssssscsssssssscrsoreseeeees 42 C. UKB possesses exclusive Tribal jurisdiction over land held in trust for its benefit...............c0008 47 D. Trust lands acquired for UKB within the Cherokee Reservation qualify as “Indian lands” under the Indian Gaming Regulatory ACt............ccscsscsscssecerseesceseeseeesesesesasecaeeesscessenscesseeseseaseeaeseusaeeees 54 CONCIUSION............csccseesccsssrccesssccesseecesseecesseccessecenseseesecessceesssesssneeeeassoesseseesseeeecesseesecsneeesosnsensessssecsssnesasensaea ss 56 Background A. Procedural History In July 2012, the Assistant Secretary—Indian Affairs granted UKB’s application to take a 2.03- acre parcel of land into trust for gaming activities.'' That decision reasoned that what was then commonly known as the “former reservation” of the Cherokee Nation was also the “former reservation” of the UKB for purposes of the Indian Gaming Regulatory Act (IGRA). The Cherokee Nation challenged that decision, and the Northern District of Oklahoma ruled that— although the Department did have authority to take land into trust for UKB—the IGRA’s requirements for gaming on such land had not been met. Specifically, the district court disagreed with the July 2012 decision’s conclusion that the Cherokee Nation’s former reservation was the UKB’s former reservation and found that the trust acquisition for gaming purposes was therefore unlawful.'? UKB and the Department appealed. While those appeals were pending, the United States Supreme Court decided McGirt v. Oklahoma, which changed the analysis applicable to many treaty lands in Oklahoma, including what had been called the “former reservation” in the Assistant Secretary’s July 2012 decision granting UKB’s land-into-trust application. The McGirt decision is discussed in more detail below, but it and its progeny prompted the Assistant Secretary to withdraw the July 2012 decision. The Assistant Secretary notified UKB that recent judicial opinions had “changed the legal landscape of Oklahoma lands” and “undermine[d] the Department of the Interior’s . . . decision regarding ‘former reservation’ status for these lands under [IGRA].””? At the Department’s request, the Tenth Circuit Court of Appeals dismissed UKB’s and the Department’s appeals as moot and vacated the district court’s judgment regarding the Assistant Secretary’s July 2012 decision.'* B. McGirt v. Oklahoma and Subsequent Legal Developments McGirt v. Oklahoma arose when Jimcy McGirt, a member of the Seminole Nation, challenged Oklahoma’s jurisdiction to prosecute him for serious sexual offenses.'> He argued that Oklahoma lacked criminal jurisdiction over his offenses because he committed them on the ' UKB first began offering public bingo on this parcel of land in 1986, prior to IGRA’s enactment in 1988. See Cherokee Nation v. Bernhardt, No. 12-cv-493-GKF-JFJ, 2020 U.S. Dist. LEXIS 50749, at *4-7 (N.D. Okla. Mar. 24, 2020) (discussing history of the parcel), vacated as moot sub nom. Cherokee Nation v. Haaland, Nos. 20-5054 & 20-5055, 2022 U.S. App. LEXIS 12257 (10th Cir. May 6, 2022). Nor is this the only parcel that UKB has sought to have taken into trust. In 2004, UKB submitted a land into trust application for a 76-acre parcel to be used as a Tribal and cultural center. BIA approved that application in 2011. In 2019, following a legal challenge by the Cherokee Nation, the Tenth Circuit Court of Appeals held that: (1) the “Secretary of the Interior has authority to take the [76- acre parcel] into trust under section 3 of the Oklahoma Indian Welfare Act of 1936”; (2) BIA was “not required to consider whether the UKB meets the [Indian Reorganization Act’s] definition of ‘Indian’”; (3) BIA was not “required to obtain the [Cherokee] Nation’s consent before taking the land into trust”; and (4) BIA’s decision “was not arbitrary and capricious.” Cherokee Nation v. Bernhardt, 936 F.3d 1142, 1147 (10th Cir. 2019). '2 Bernhardt, 2020 U.S. Dist. LEXIS 50749, at *37. '3 Letter from Bryan Newland, Assistant Sec’y — Indian Affs., to Joe Bunch, Chief of the United Keetoowah Band of Cherokee Indians (Nov. 23, 2021). '4 Haaland, 2022 U.S. App. LEXIS 12257, at *2-4. '5 591 U.S. 894 (2020). Creek Reservation, which was established by treaty in 1833. In response, Oklahoma argued that Congress had disestablished the Creek Reservation by the time of Oklahoma statehood or shortly thereafter. The Supreme Court rejected Oklahoma’s arguments in a 5-4 opinion written by Justice Neil Gorsuch. Reaffirming that only an act of Congress may disestablish a reservation, the Court held that Congress had never “dissolved the Creek Tribe or disestablished its reservation.”'® Oklahoma thus lacked criminal jurisdiction over crimes committed by Tribal members on the Creek reservation. His state convictions were vacated, and he was ultimately retried and convicted for his crimes in federal court, receiving three life sentences. Suits were then filed to settle questions of whether other Tribes in Oklahoma, including the Cherokee, had similarly intact reservations. In 2021, Oklahoma’s Court of Criminal Appeals agreed that Congress had established a Cherokee Reservation, and affirmed a lower court’s decision finding no evidence that Congress had ever disestablished the boundaries of the Cherokee Reservation.!’ The effect of these decisions is to recognize that, pursuant to McGirt, the Cherokee Reservation is not a “former reservation,” but a current one. C. History of the Cherokee People The intertwined history of the Cherokee Nation and the Keetoowahs is recounted below.'® Early History Cherokee people exercised dominion over a vast region of the southeastern United States, including all or part of the modern states of Georgia, Alabama, Tennessee, Kentucky, West Virginia, Virginia, and the Carolinas.'? “Although Cherokees had traditionally resided in small towns with local leaders, in response to contact with European settler nations the Nation became increasingly politically unified and centralized in order to deal with and react to other sovereigns.”“° In the first 30 years of the American republic, “the Cherokee nation,” alternately referred to as “the Cherokee Indians” or “the Cherokees” signed eight treaties with the United States. Such unity was not perfect, however, and in the 1810s a group of Cherokees under the leadership of Tahlonteskee began moving west with the intention of settling in Arkansas.” This group is 16 Id. at 913. '7 Hogner v. State, 500 P.3d 629, 634-35 (Okla. Crim. App. 2021); Spears v. State, 485 P.3d 873, 876-77 (Okla. Crim. App. 2021). '8 | do not address the history of the Eastern Band of Cherokee Indians, the third federally recognized Cherokee Tribe, because it is not relevant to the present inquiry regarding the Cherokee Reservation in Oklahoma. References to the “Eastern Cherokee” or “Emigrant/Immigrant Cherokee” refer to the Cherokee who traveled or were removed west in the late 1830s, not to the Cherokee who remained in the east and later became recognized as the Eastern Band of Cherokee Indians. 19 ROBERT J. CONLEY, THE CHEROKEE NATION: A HISTORY 6 (2005). 20 Cherokee Nation Submission, supra note 5, at 14. 21 See, e.g., Treaty with the Cherokee, Nov. 28, 1785, 7 Stat. 18; Treaty with the Cherokee, Oct. 2, 1798, 7 Stat. 62; Treaty with the Cherokee, Jan. 7, 1806, 7 Stat. 101. 22 CONLEY, supra note 19,at 85; JAMES MOONEY, HISTORICAL SKETCH OF THE CHEROKEE 93 (1975). 6 known as the Old Settlers or Western Cherokees. The main body of the Cherokee Nation was opposed to relinquishing any of their eastern territory in exchange for land in Arkansas, but the United States pressed the Nation until it acquiesced in signing the Treaty of 1817.7? That treaty guaranteed to the Cherokees in Arkansas as much land as had been ceded in the east.74 The Western Cherokees’ time in Arkansas was short-lived. White settlers flocked to the area after Arkansas became an official U.S. Territory in 1819.7> In the Treaty of 1828, “the undersigned, chiefs of the Cherokee nation, west of the Mississippi” agreed to cede the Arkansas lands granted by the Treaty of 1817 in exchange for lands in present-day northeastern Oklahoma that were to become the core of the present Cherokee Reservation.”° The Treaty of 1828 also granted to the Western Cherokee a “perpetual outlet, West,” commonly referred to as the “Cherokee Outlet,” a wide strip of land stretching from the western boundary of the reservation as far west as the United States’ sovereignty extended.”’ By this time, the Western Cherokee and Eastern Cherokee were governed by their own respective chiefs and each had adopted their own laws.2® “The Cherokee Nation, East of the Mississippi” was not a party to the Treaty of 1828.”° In a second treaty with the Western Cherokee in 1833, the United States agreed to secure the 1828 Treaty lands, with minor adjustments, by patent.*° Removal Like their time in Arkansas, the Western Cherokees’ time as a separate group was short-lived. The Cherokee Nation east of the Mississippi, led by John Ross, desired to remain in the east.*! President Andrew Jackson, on the other hand, was determined to remove the Cherokee and other eastern Tribes. In December 1835, Jackson’s treaty commissioners met and signed a treaty with a minority faction of the Cherokee known as the Treaty Party or Ridge Party.*? Although this faction had no authority from the Nation, the 1835 Treaty of New Echota (Treaty of 1835) was ratified by Congress and went into effect.* The treaty ceded the Cherokees’ remaining traditional lands in the southeast and provided for the removal of the Eastern Cherokee to the lands previously granted to the Western Cherokee.** The treaty enlarged the Cherokee Reservation by adding 800,000 acres in what would become Kansas to the seven million acres and the Cherokee Outlet previously guaranteed.*> Notably, it also carried forward the promise 23 CONLEY, supra note 19, at 96-99; MOONEY, supra note 22, at 93. *4 Treaty with the Cherokee art. V, Feb. 27, 1819, 7 Stat. 195. 5 Declaration of Lindsay G. Robertson §| 7 (Nov. 9, 2022) (Cherokee Nation Ex. 3) [hereinafter Robertson]. 6 Treaty with the Western Cherokee arts. II, [V, May 6, 1828, 7 Stat. 311. 27 Id. at art. IL. 28 GEORGIA RAY LEEDS, THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA 4-5 (1996); Expert Report of Lisa C. Baker, United Keetowah [sic] Band of Cherokee Indians in Oklahoma v. United States, No. 06-cv- 00936L, § 6 (Fed. Cl. Sept. 23, 2013) [hereinafter Baker]; Robertson, supra note 25, { 8. ?° Terence Kehoe, Rebuttal Report 4 (Nov. 4, 2013) (Cherokee Nation Ex. 6); see also Baker, supra note 28, § 7. 5° Treaty with the Western Cherokee art. I, Feb. 14, 1833, 7 Stat. 414. 5! Tabatha Toney, “Until We Fall to the Ground United”: Cherokee Resilience and Interfactional Cooperation in the Early Twentieth Century 31-33 (May 2018) (unpublished Ph.D. dissertation, Oklahoma State University), https://openresearch.okstate.edu/entities/publication/1562428 1-42bf-4791-8d97-aece4cc93 6be. * Kehoe, supra note 29, at 5; Toney, supra note 31, at 34. 33 MOONEY, supra note 22, at 119-20. 34 Treaty with the Cherokees, arts. I, II, Dec. 29, 1835, 7 Stat. 478 [hereinafter Treaty of 1835]. 35 Jd. at art. II; see also Robertson, supra note 25, § 10. 7 that the Nation’s lands would be secured by fee simple patent.*° The patent was issued to the Cherokee Nation on December 31, 1838.7” The Treaty of 1835 was a first step in reunifying the Cherokee Nation. The treaty’s preamble states that it was entered by the Cherokees “with a view to reuniting their people in one body and securing a permanent home for themselves and their posterity . . . 738 The Western Cherokee were not party to the treaty, but delegates from the Western Cherokee signed an addendum that was made a supplementary article.*? The Western delegates expressed “their desire that the nation should again be united as one people” and assured the Eastern Cherokees that they could expect “a hearty welcome and an equal participation with them in all the benefits and privileges of the Cherokee country west... .”4° What this reunification meant in practice would take a decade to work out. The Treaty Party were the first to arrive in the Cherokee Nation west, where they agreed to live under the Western Cherokee government led by Chief John Brown.*! From the fall of 1838 through the spring of 1839, the U.S. Army forced the bulk of the Cherokee Nation to remove west.2 The Eastern Cherokee led by John Ross, comprised of 14,000-15,000 individuals, far outnumbered the Treaty Party (2,000 individuals) and the Western Cherokees (perhaps 5,000 individuals).*° At aconvention in June 1839, Chief John Brown proclaimed that the Eastern Cherokee were welcome to live under his leadership and the existing laws of the Western Cherokee. “Ross and his party, however, wanted to replicate the former government of the Eastern Cherokee in these new lands.”*° In July 1839, a group of Cherokees passed a purported “Act of Union,” and on September 6, 1839, the same group, led by John Ross, ratified a constitution similar to the 1827 constitution of the Eastern Cherokees.*° Although the Western Cherokee did not fully acquiesce to these actions,*” Ross and his supporters ultimately prevailed in taking power. Ross was elected first Principal Chief under the new constitution and was continually re-elected until his death in 1866.8 Meanwhile, on June 22, 1839, Major Ridge and other leaders of the Treaty Party who signed the Treaty of 1835 were assassinated as traitors.” Following this spark, tensions between the three 36 Treaty of 1835, supra note 34, art. II. 37 Robertson, supra note 25, J 11, Ex. 47 (attaching United States to Cherokee Nation Patent (Dec. 31, 1838)). 38 Treaty of 1835, supra note 34, preamble. 3° Kehoe, supra note 29, at 6; Baker, supra note 28, § 9. © Treaty of 1835, supra note 34, addendum, Dec. 31, 1835, 7 Stat. 487. 4! Kehoe, supra note 29, at 8. 42 CONLEY, supra note 19, at 155-57. 43 Kehoe, supra note 29, at 7, 7.14. “4 Baker, supra note 28, J 10; Kehoe, supra note 29, at 7; Toney, supra note 31, at 37. 45 Kehoe, supra note 29, at 7. 46 Robertson, supra note 25, {J 13, 14; Kehoe, supra note 29, at 7; Baker, supra note 28, § 10. 47 Kehoe, supra note 29, at 8; Baker, supra note 28, § 10. 48 Robertson supra note 25, { 14. 49 Kehoe, supra note 29, at 7. groups led to years of violence and unrest.°? The Superintendent of Indian Affairs eventually intervened by appointing a commission to investigate and resolve the differences among the three groups.°' The result of these proceedings was the Treaty of 1846, which was signed by leaders and representatives of the Ross/Government Party, the Treaty Party, and the Western Cherokees.*” The Treaty of 1846 was an important moment in Cherokee history, consolidating the Nation and affirming its territory. Article I proclaimed “[t]hat the lands now occupied by the Cherokee Nation shall be secured to the whole Cherokee people for their common use and benefit; and a patent shall be issued for the same... .”°? Article II promised that “[a]ll difficulties and differences heretofore existing between the several parties of the Cherokee Nation are hereby settled and adjusted, and . . . [a]ll party distinctions shall cease... .”°4 Article II also attempted to wipe the slate clean by pardoning “[a]ll offenses and crimes” committed by citizens against the Nation or against other citizens.>> In exchange for a share of the removal funds granted in the Treaty of 1835, the Western Cherokee relinquished their claim “to exclusive ownership” of the Cherokee Reservation.>* Instead, such lands were to “remain the common property of the whole Cherokee people... .”°’ Although the Western Cherokee later protested the Treaty of 1846, the treaty served to legally unify the Cherokee Nation under the Ross government.*® The Civil War The Nation enjoyed a decade of relative peace and stability before the pressures of the American Civil War began to highlight fractures in the Nation along old fault lines. The more-assimilated, slave-owning, and typically “mixed blood” progressives—former members of the Treaty Party— sympathized with the cause of the South.°? Led by Stand Watie, they coalesced in the secret society of the Knights of the Golden Circle and were known publicly as the Southern Party.” Around the same time, the conservative, “full blood” element of the Nation—many of whom were supporters of John Ross—formed the Keetoowah Society.°! 5° Patricia Jo Lynn King, The Forgotten Warriors: Keetoowah Abolitionists, Revitalization, the Search for Modernity, and Struggle for Autonomy in the Cherokee Nation, 1800-1866, 233 (2013) (unpublished Ph.D. dissertation, University of Oklahoma), https://shareok.org/bitstream/handle/1 1244/3 18707/King_ou_0169D_11061.pdf; Kehoe, supra note 29, at 8; Toney, supra note 31, at 49. 5! Robertson, supra note 25, J 15; Kehoe, supra note 29, at 9. >2 Robertson, supra note 25, J 15; Kehoe, supra note 29, at 9. 53 Treaty with the Cherokee art. I, Aug. 6, 1846, 9 Stat. 871 [hereinafter Treaty of 1846]. 54 Td. at art. II. 55 Id. %6 Jd, at art. IV. 57 Id. 58 Kehoe, supra note 29, at 9-10; Baker, supra note 28, J 10; Robertson, supra note 25, {| 16. >» Kehoe, supra note 29, at 10. 6 Robertson, supra note 25, § 18; Toney, supra note 31, at 52-53. $1 Robertson, supra note 25, § 18; Toney, supra note 31, at 52-53; Kehoe, supra note 29, at 10. 9 There is some debate as to whether the Keetoowah Society existed prior to the 1850s, but all agree that its modern iteration stems from a convention of Keetoowahs who met in secret on April 15, 1858.°° That group nominated Budd Gritts to write a constitution for the Society, and on April 29, 1859, the constitution was ratified. The Society was at once religious and political: “The rituals and activities associated with the Keetoowah Society were designed to unite the conservatives for political action. Its primary goal was to create a nationalist organization that would insure traditionalist dominance of the Nation’s Council in order to preserve Cherokee sovereignty.” Principal Chief Ross hoped to keep the Cherokee Nation neutral but Stand Watie and the Southern Party sided with the Confederacy. Ross chose national unity over neutrality, and in October 1861, the Nation signed a treaty of alliance with the Confederacy.®’ Eventually, Ross and many of his supporters, including Keetoowahs, defected to the Union and set up their own government in opposition to the pro-Confederate Cherokee government led by Stand Watie.® “Once again, there were two rival Cherokee governments. Years of guerilla warfare devastated the Cherokee population and countryside.”® After the war, Principal Chief Ross and the Southern Party each sent delegations to negotiate with the United States for federal recognition.”” The resulting Treaty of 1866 was signed by Ross’s delegates, including members of the Keetoowah Society, confirming that the Nation’s government under the 1839 Constitution would continue.’! The treaty reaffirmed “[a]l1 provisions of treaties, heretofore ratified and in force, and not inconsistent with the provisions of this treaty ....””* Nevertheless, the United States capitalized on the Nation’s alliance with the South to force concessions. The Nation agreed to cede the lands in Kansas granted by the Treaty 62 On page 11 of its submission, UKB explains that “[w]hile the Keetoowahs insist their tribal organization dates back to time immemorial—and while there is some evidence of this—the Keetoowah tribal organization definitely existed in 1858, when fullblood Cherokees in Indian Territory reorganized it.” UKB Submission, supra note 3, at 11 (footnote omitted). Historian Duane Champagne reports that the Keetoowah Society “was active politically during the 1830’s in the campaign to prevent removal... .” DUANE CHAMPAGNE, SOCIAL ORDER AND POLITICAL CHANGE: CONSTITUTIONAL GOVERNMENTS AMONG THE CHEROKEE, THE CHOCTAW, THE CHICKASAW, AND THE CREEK 145 (1992) (Cherokee Nation Ex. 7). See also J. C. Starr, Opposition to Enrollment and Desire to Retain the Old Tribal Customs Principal Characteristics (June 7, 1903), in WESTERN HISTORY COLLECTIONS: J. C. STARR PAPERS 11-12 (James R. Carselowey ed., University of Oklahoma, Dec. 14, 1937) (reporting that the Keetoowah organization was formed by anti-treaty fullbloods after the Treaty of 1835), https://digital.libraries.ou.edu/utils/getfile/collection/indianpp/id/6 1 12/filename/6 1 13.pdf. 63 Robertson, supra note 25, J 19; Cherokee Keetoowah Convention & Laws, Deliberation (Apr. 29, 1859) (UKB Ex. 9). 4 Cherokee Keetoowah Convention & Laws, Deliberation (Apr. 29, 1859) (UKB Ex. 9). 65 Patrick Neal Minges, The Keetoowah Society and the Avocation of Religious Nationalism in the Cherokee Nation 1855-1867, at 154 (1999) (unpublished Ph.D. dissertation, Union Theological Seminary). Toney, supra note 31, at 52-53. 67 Robertson, supra note 25, J 22; see also WILLIAM G. MCLOUGHLIN, AFTER THE TRAIL OF TEARS: THE CHEROKEES’ STRUGGLE FOR SOVEREIGNTY 1839-1880, 181-90 (1993). 68 Kehoe, supra note 29, at 12; MCLOUGHLIN, supra note 67, at 207-08; see also Submission, supra note 3, at 21 (“While initially more than 1,200 Keetoowahs marched with other Cherokee soldiers for the South, they deserted in high numbers to join the Union.”). ® Kehoe, supra note 29, at 12; see also Toney, supra note 31, at 54-55. 7 Toney, supra note 31, at 55; Kehoe, supra note 29, at 12. | Treaty with the Cherokee, July 19, 1866, 14 Stat. 799 [hereinafter Treaty of 1866]; Robertson, supra note 25, § 22. ? Treaty of 1866, supra note 71, at art. XXXI. 10 of 1835 and further agreed that the lands in the Cherokee Outlet could be sold to other Tribes.” After those alterations, the Cherokee Reservation’s boundaries have remained unchanged.” The Keetoowah Society and Allotment Following the Treaty of 1866, the Cherokee Nation operated in relative harmony under its 1839 Constitution, led by its Principal Chief and the National Council.” The Keetoowah Society remained active during this period as evidenced by its compiled laws, which show that the organization met and adopted laws in 1860, 1861, 1866, 1876, 1884, 1885, and 1889.” The Keetoowahs were also active in the politics of the Nation, helping to sway the outcome of several elections.’’ In the first election after John Ross’s death, “‘a majority of the Keetoowah Society, and certain members of the Southern party joined together and formed a party of national reconciliation” to win the election of Lewis Downing as Principal Chief.’* In the hotly contested election of 1875, the Keetoowahs continued to align with the Downing Party in support of a traditional candidate, Charles Thompson.” In 1887, Congress passed the Dawes Act, announcing its intention to allot Indian lands across the country in service of assimilating the nation’s Indian Tribes.°° Although the Dawes Act did not apply to the Five Tribes who held their lands by patent, the Dawes Act presaged what was to come for the Cherokee Nation. From the outset, “[t]he Keetoowah Society fiercely opposed allotment and assimilation” in keeping with their mission to promote Cherokee sovereignty and self-determination.*! After Congress established the Dawes Commission in 1893 to negotiate with the Five Tribes regarding allotment, the Keetoowah Society issued a resolution to the Cherokee delegates urging them to refuse to negotiate.” Indeed, the Cherokee Nation government opposed allotment and often refused to meet or cooperate with the Dawes Commission. In response to this opposition, Congress passed the Curtis Act in 1898. The Curtis Act “provided for the allotment of the lands in Indian Territory once a tribe’s citizenship roll was completed and its land surveyed” regardless of Tribal consent.** Thereafter, the Cherokee Nation under Principal Chief Samuel Mayes appointed delegates to negotiate an allotment agreement with the United States.** In early 1899, Cherokee citizens voted to approve an agreement put forth by 3 Id. at arts. XVI, XVII. ™ UKB Submission, supra note 3, at 21. 73 Robertson, supra note 25, § 23. 76 See generally Cherokee Keetoowah Convention & Laws (UKB Ex. 9); see also UKB Submission, supra note 3, at 22. 7 See Minges, supra note 65, at 155 (“At [Keetoowah Society] conventions, political candidates were recruited to run for national office and the grass roots membership was organized into a populist movement to redefine the political soul of the Cherokee Nation ... .”). 78 CHAMPAGNE, supra note 62, at 214-15. ” Toney, supra note 31, at 66. 80 Act of February 8, 1887, ch. 119, 24 Stat. 388; see also Kehoe, supra note 29, at 13. 8! Baker, supra note 28, q 13. 82 Kehoe, supra note 29, at 13-14; UKB Submission, supra note 3, at 23. 83 Kehoe, supra note 29, at 13; see generally Toney, supra note 31, 70-77. 84 Kehoe, supra note 29, at 13; see also Robertson, supra note 25, § 28. 85 CONLEY, supra note 19,at 197; Toney, supra note 31, at 77-78. 11 their delegates.*° The Keetoowahs boycotted this election, and had they not, the result might have been different.®’ For unknown reasons, Congress did not ratify this version of the agreement.*® The Keetoowah Society continued to protest allotment by presenting a memorial to Congress and by sending a resolution to the Secretary of the Interior and the Principal Chief.®? Ultimately, the Nation voted to approve an allotment agreement set forth in the Act of July 1, 1902.°° The agreement provided for a roll of Cherokee citizens to be compiled. The “Dawes Roll,” as it came to be known, served as the basis for doling out allotments. The agreement also stated that “(t]he tribal government of the Cherokee Nation shall not continue longer than March fourth, nineteen hundred and six.””! During this time period, cracks began to show among the Keetoowahs. The Nighthawk Keetoowahs, under the leadership of Redbird Smith, split from the Keetoowah Society.” The Nighthawks were more focused on traditional religion and ceremony than on politics, and their name likely derives from their practice of meeting at night.?> While members of the Keetoowah Society reluctantly agreed to accept their allotments under protest, Redbird Smith and many members of the Nighthawks evaded the Dawes Commission until they were arrested and forced to receive their allotments.” Transition As the dissolution of the Cherokee national government approached, the Keetoowah Society was not done fighting for Cherokee sovereignty, and they did so on multiple fronts. The Society favored the idea of creating a separate indigenous state called Sequoyah and worked alongside the Cherokee Nation government towards that goal.*> That dream ended in 1907 when Oklahoma became a state.” In July 1905, when Principal Chief Rogers declined to call an election for the National Council—anticipating the dissolution of the government the next year—the Keetoowah Society’s lawyer Frank Boudinot called for an election anyway.*’ The new National Council, composed of Keetoowah Society members, impeached Rogers and selected Boudinot as Principal Chief.” The United States refused to view the impeachment of Rogers or election of Boudinot as 86 Toney, supra note 31, at 77. 87 Memorandum from D’Arcy McNickle to John Collier, Comm’r of Indian Affs. 3-4 (Apr. 24, 1944) (UKB Ex. 12; Cherokee Nation Ex. 46) [hereinafter McNickle Memo]; LEEDS, supra note 28,at 7; see also Big Pow-Wow Held, DALLAS MORNING NEWS, Oct. 19, 1902 (UKB Ex. 21) (“[W]Jhen the society pledges its support to a measure it must win and when the influence of these 1,700 is against any measure it must fail.”). 88 CONLEY, supra note 19, at 197. 89S. Doc. No. 56-333 (1900) (UKB Ex. 48); Keetoowah Resolution (Nov. 28, 1900) (UKB Ex. 17). Kehoe, supra note 29, at 13; Baker, supra note 28, § 13. | Act of July 1, 1902, Pub. L. No. 57-241, § 63, 32 Stat. 716, 725. 2 Kehoe, supra note 29, at 14; J. W. Duncan, The Keetoowah Society, 4 Chrons. of Okla. 251, 253 (1926). °3 LEEDS, supra note 28, at 9. 4 Kehoe, supra note 29, at 14; Toney, supra note 31, at 79; LEEDS, supra note 28, at 8; Gregory D. Smithers, Expert Report 14 (June 26, 2023). 5 Toney, supra note 31, at 89-91. % Act of June 16, 1906, Pub. L. No. 59-234, 34 Stat. 267; CONLEY, supra note 19, at 202. »? Toney, supra note 31, at 90-91, 95; LEEDS, supra note 28, at 10. %8 Toney, supra note 31, at 95; CONLEY, supra note 19, at 198. 12 legitimate, and Rogers continued to be recognized by the Federal government as Principal Chief through 1917.” Additionally, the Keetoowah Society chose to incorporate so that some sort of official organization might still be able to serve the Cherokee people after 1906.'"° On September 30, 1905, the United States Court for the Northern District of the Indian Territory granted the Keetoowah Society a Certificate of Incorporation under the laws of Arkansas governing “benevolent associations.”!°! The Society was thereafter known as the Keetoowah Society, Inc. and its first president or head captain was Richard M. Wolfe.' In part due to the efforts of the Keetoowahs and other elements of the Cherokee Nation, the process of allotment dragged on, and Congress changed course. On March 2, 1906, just days prior to the designated expiration of the Five Tribes’ governments, Congress passed a joint resolution that continued the governments until all property could be distributed.'°? The United States still needed official Tribal representatives to sign deeds and the like.’ In April, Congress went further by passing the Five Tribes Act, which declared that “tribal existence and tribal governments .. . are hereby continued in full force and effect for all purposes authorized by law.”!°5 While the Act did not prohibit the Cherokee Nation from electing a Principal Chief or a National Council, it provided that the President of the United States had the power to remove and replace the Principal Chief and that Tribal laws and contracts were invalid unless approved by the President.'°° Rogers continued as Principal Chief in a limited capacity through 1917, but “(flor all practical purposes,” the Cherokee Nation’s governmental body, as it had existed up to that point, “had become dormant.”! Twilight Historiography of the Cherokee in the first half of the twentieth century is sparse.'!°° The Curtis Act, the Five Tribes Act, the “bureaucratic imperialism” of the federal government, and the difficult economic conditions on the Cherokee Reservation all worked to sap power from, and limit the functioning of, the Cherokee Tribal government after the last National Council under Principal Chief Rogers.'°? After 1917, the President of the United States occasionally appointed “chiefs for a day” as necessary for conducting business related to Cherokee Nation assets. !!° ® Robertson, supra note 25, 29; Kehoe, supra note 29, at 16. 10 Constitution of the Keetoowah Society (1905) (UKB Ex. 23); LEEDS, supra note 28, at 10. 101 Robertson, supra note 25, ] 31; Kehoe, supra note 29, at 15; see also Certificate of Incorporation of Keetoowah Society (Sept. 30, 1905) (UKB Ex. 25). 102 LEEDS, supra note 28, at 10; Robertson, supra note 25, § 31. 103 S.J. Res. 26, 59th Cong., 34 Stat. 822 (1906); Robertson, supra note 25, { 32. 104 Toney, supra note 31, at 103, 113; LEEDS, supra note 28, at 10-11; Kehoe, supra note 29, at 16. 105 Five-Civilized Tribes Act, Pub. L. No. 59-129, 34 Stat. 137 (1906). 106 CONLEY, supra note 19, at 201-202. 107 Td. at 202-03. 108 Toney, supra note 31, at 17. 109 See, e.g., CONLEY, supra note 19, at 202-03; Harjo v. Kleppe, 420 F. Supp. 1110, 1130 (D.D.C. 1976) (“Thfe government’s] attitude, which can only be characterized as bureaucratic imperialism, manifested itself in deliberate attempts to frustrate, debilitate, and generally prevent from functioning the tribal governments expressly preserved by § 28 of the [Five Tribes] Act.”). 110 Robertson, supra note 25, J 32: Kehoe, supra note 29, at 16-17; Baker, supra note 28, ¥ 13. 13 Consequently, few primary sources or official Cherokee Nation records exist from this time." Records for other Cherokee groups from the early 20th century are likewise sparse. “Primary sources for the [Nighthawk] Keetoowahs . . . are difficult to find due to their secrecy.”!'? Many records of the Keetoowah Society, Inc. were stolen when their offices were burglarized during World War I.!!3 One of the few scholars to examine this twilight era of Cherokee history is Tabatha Toney, whose unpublished dissertation focuses squarely on this period.''* She posits that Cherokee citizens set aside previous factional differences so that grassroots organizations could come together to function as an unofficial Cherokee government.'!> More specifically, the Cherokees worked together under the Keetoowahs to maintain and regain their self-determination in the early twentieth century. Without this action and unity, the Cherokee would have lost any autonomy or organization to provide the services of a tribal government, such as distributing funds and providing the Cherokee a voice and representation to the US government.!!® Indeed, the Keetoowah Society, Inc. was one of the primary organizations working to advance Cherokee interests, especially with respect to claims against the United States.''’ The Society’s lawyer, Frank Boudinot, regularly traveled to Washington, D.C., to lobby for jurisdictional acts that would allow the Cherokee to press their claims.''® These activities were sanctioned by other groups of Cherokees through a loose coalition known as the Cherokee Executive Council.!! '!! Toney, supra note 31, at 2 (“When the federal government no longer officially recognized the tribal government, official records of the National Council and chiefs were no longer kept.”). 'l2 Toney, supra note 31, at 11. "13 Claim of Frank J. Boudinot: Hearings Before a Subcomm. of the Committee on Indian Affairs, 7\st Cong. 28 (1930) (UKB Ex. 14) [hereinafter Claim of Boudinot). 114 Toney, supra note 31, at 20 (“This dissertation picks up where previous historiography ends in the early twentieth century with the abolition of tribal governments.”). 15 Jd at 106; see also Julia Coates, Keetoowahs and the Cherokee Nation enter Contested Waters, FREEDMEN VS CHEROKEE NATION (Dec. 12, 2011), https://freedmenvscherokeenation.blogspot.com/20 1 1/12/keetoowahs-andcherokee-nation-enter.html (“A consortium of grassroots organizations thus become the primary collective decisionmaking mechanism among the Cherokees.”). 6 Toney, supra note 31, at 176 (emphasis added). See also Claim of Boudinot, supra note 113, at 31; Smithers, supra note 94, at 15 (“[T]hey formed de facto governments that operated in local communities.”). 17 See Letter from Frank J. Boudinot to the Sec’y of the Interior (Aug. 1919) (UKB Ex. 28) (stating that he planned to advise the Keetoowah Society to coordinate with the various elements of the Cherokee Nation to “make it possible for the whole body of the people to give fair, full and convincing expression to their wishes, in any effort they may make to reach the Executive or Legislative branches of the Government.”); Claim of Boudinot, supra note 113, at 10 (statement of Rep. William W. Hastings) (“The Keetoowah Society is an organization of full-blood Indians that meets regularly from time to time, and they have been keeping up with the matter of pressing the settlement of these claims rather in lieu of a Cherokee government.”); Memorandum from A. C. Monahan, Reg’! Coordinator, to the Comm’r of Indian Affs. (June 15, 1940) (“[T]he Society was taking on new life primarily for the purpose of representing the Cherokee people as the Cherokee Nation was apparently being dissolved by Act of Congress.”) (Cherokee Nation Ex. 41). See generally Duncan, supra note 92. 118 Claim of Boudinot, supra note 113, at 7 (statement of William W. Hastings, Member, Rep. of Okla.). 119 CONLEY, supra note 19, at 203-04. 14 “Operating as a business organization, [this coalition] transacted the interests of the Cherokee Nation.”!2° In August 1916, Principal Chief Rogers issued a call for a Cherokee national convention, and in October of that year, a group of approximately 400 elected Cherokee met to discuss the prosecution of claims against the United States.'*! “The convention enacted resolutions directing Chief Rogers to cooperate with the Keetoowah Society in obtaining final settlement of these claims and authorizing Frank J. Boudinot to represent the Cherokee Indians” in pursuit of a jurisdictional bill from Congress.'*? The first such bill to be enacted was the Act of March 3, 1919, which permitted the Cherokee to sue to collect interest on a previous judgment related to the Cherokee Outlet. !”? The Nighthawk Keetoowahs were also involved in these efforts. In November 1920, the Nighthawks convened a meeting called the “Illinois Fire” to unite Keetoowah factions that had splintered during the early part of the twentieth century.'*4 They wanted to elect a chief of all Cherokees, one selected by the people instead of by the U.S. government. The Nighthawks nominated Levi Gritts to that position and asked the Keetoowah Society, Inc. to “invite other organizations of the Cherokees to meet at Tahlequah ... .”!7° The Keetoowah Society, Inc. called for a meeting, and on January 31, 1921, a convention of Cherokees met and elected Levi Gritts as Principal Chief.!2° The convention was attended by representatives of the Cherokee Executive Committee, a group of primarily half-bloods created during the 1916 convention,'?’ well as the Keetoowah Society, Inc. and the Nighthawk Keetoowahs, who together represented the full-bloods. Although Gritts was never recognized by the U.S. government, he served in this role throughout the 1920s.!78 as The second jurisdictional bill secured by Keetoowah Society, Inc. lawyer Boudinot was the Act of March 19, 1924, a catch-all bill authorizing the Five Tribes to sue under treaty, agreement, or federal law for any unresolved claims against the United States.'?? Prior to the bill’s passage, Boudinot selected a team of four other lawyers to assist in his efforts and asked the Keetoowah 120 LEEDS, supra note 28, at 13; see also Toney, supra note 31, at 124 (“The tribe retained the Cherokee Executive Council to carry out the business of their nation throughout the 1920s and 1930s. They continued to conduct meetings and pursue claims against the US. This council served as a business entity to assist their people financially rather than as a governmental institution.”). '21 | EEDS, supra note 28, at 23. '22 Kehoe, supra note 29, at 17. 123 Id; Act of March 3, 1919, Pub. L. No. 65-331, ch. 103, 40 Stat. 1316. 124 Toney, supra note 31, at 120; Charles Wisdom, The Keetoowah Society of the Oklahoms [sic] Cherokee 10 (1937) (unpublished manuscript) (on file at select libraries) (Cherokee Nation Ex. 35) [hereinafter Wisdom, The Keetoowah Society]; Chief Sam Smith & Ass’t Chief William Rogers, Illinois Fire, November 10, /920, in WESTERN HISTORY COLLECTIONS: DOCUMENTS OF S. R. LEWIS 455-57 (University of Oklahoma) [hereinafter LEWIS DOCUMENTS], http://digital.libraries.ou.edu/cdm/ref/collection/indianpp/id/7983. 125 Smith & Rogers, in LEWIS DOCUMENTS, supra note 124, at 457. !26 James W. Duncan, Tahlequah, Oklahoma, January 31, 1921, in LEwis DOCUMENTS, supra note 124, at 459. See also Levi Gritts, as quoted in Wisdom, The Keetoowah Society, supra note 124, at 14-15. 127 Resolution, (Jan. 31, 1921), in LEWIS DOCUMENTS, supra note 124, at 454; Claim of Boudinot, supra note 113, at 26. 28 Toney, supra note 31, at 124. 29 Kehoe, supra note 29, at 18; Act of March 19, 1924, Pub. L. No. 68-57, ch. 70, 43 Stat. 27. 15 Society, Inc. to approve the arrangement.'2? After the Society did so, the Nighthawks, the Cherokee Executive Committee, and another representative group under the name “Cherokee Nation Organization” all passed resolutions endorsing the group of five attorneys.'>! After the jurisdictional bill was enacted by Congress, a representative committee of Cherokees was quickly convened and entered a contract with Boudinot and his team that was later approved by the Department of the Interior. In 1925, the Cherokee Executive Council—including the Cherokee Executive Committee, the Nighthawks, the Keetoowah Society, Inc., and the Eastern and Western Cherokee Councils—met in convention and re-elected Levi Gritts as Principal Chief.'?? In 1928, Gritts also became Chief of the Keetoowah Society, Inc.'34 In this role, he traveled often to Washington, DC in the early 1930s to lobby Congress regarding the nascent Indian Reorganization Act.!° The Act of April 25, 1932, was the final jurisdictional bill specific to the Cherokees that Boudinot helped to achieve.'3® The Act authorized claims against the United States by the “Eastern or Emigrant Cherokees, and the Western Cherokees or Old Settler Indians .. . .”!°’ In summary, although the official Cherokee Nation government was subject to presidentially appointed “chiefs for a day” during the early twentieth century, a network of grassroots Cherokee organizations continued to advocate for and do business on behalf of the Cherokee people. The Keetoowah Society, Inc. and the Nighthawks were instrumental to these efforts. Levi Gritts, a member of the Keetoowah Society, Inc., and later its Chief, was twice elected as unofficial Principal Chief by the coalition known as the Cherokee Executive Council. Frank Boudinot, the lawyer for the Keetoowah Society, Inc., was twice selected by Cherokee conventions to lobby for Cherokee interests. And as the Indian New Deal dawned, the Keetoowahs would remain at the forefront of Cherokee affairs. The Indian New Deal In 1928, the seminal Meriam Report!>® concluded that the United States’s assimilationist policies had been a disaster.!2° When the administration of Franklin Delano Roosevelt began in 1933, the stage was set for Commissioner of Indian Affairs John Collier to usher in a new era of U.S. Indian policy. The Indian Reorganization Act (IRA), passed in 1934, was meant to reverse the 130 Claim of Boudinot, supra note 113, at 28. 131 Memorandum from Calhoun, Case, Nebeker, Boudinot, & Coldren to Comm’r of Indian Affs. (Apr. 10, 1924) (UKB Ex. 20). '32 Letter from Frank J. Bondinal [sic] to the Cherokee Representative Comm. (June 5, 1924), in LEWIS DOCUMENTS, supra note 124, at 442; Claim of Boudinot, supra note 113, at 39. 133 Toney, supra note 31, at 124; Duncan, supra note 92, 253-54; CONLEY, supra note 19, at 203-04. 134 LEEDS, supra note 28, at 14. 135 Id. 36 Frank J. Boudinot Interview (Apr. 9, 1937), in WESTERN HISTORY COLLECTIONS 440 (University of Oklahoma) (UKB Ex. 19). 37 Act of Apr. 25, 1932, Pub. L. No. 72-105, 47 Stat. 137. 138 LEWIS MERIAM ET AL., INSTITUTE FOR GOVERNMENT RESEARCH, THE PROBLEM OF INDIAN ADMINISTRATION (F.W. Powell ed., 1928). 39 CONLEY, supra note 19, at 204; JON S. BLACKMAN, OKLAHOMA’S INDIAN NEW DEAL 38-40 (2013). 16 loss of Indian lands caused by allotment and to strengthen Tribal governments.'*° Oklahoma Tribes were largely excluded from application of the bill due to the actions of Senator Elmer Thomas of Oklahoma, who “felt that with Oklahoma Indians well on the road to assimilation, the reimposition of the reservation system would only set them back.”'*! His opposition was consistent with the prevailing view at the time that Oklahoma reservations had been dissolved.'*? Nevertheless, Senator Thomas agreed to work with Commissioner Collier on a bill more tailored to Oklahoma Indians, '*? which led to the passage of the Oklahoma Indian Welfare Act (OIWA) in 1936.'4 Like the IRA, the OIWA contains provisions focused on land and Tribal governments, but with an added emphasis on welfare and economic rehabilitation.'*? The Senate Report notes that “[t]he whole plan of the bill is intended to extend to the Indian citizens the fullest possible opportunity to work out their own economic salvation.” Cherokees were split in their opinions regarding the IRA and OJWA.'*” Among the Cherokee, the Keetoowah Society, Inc. and the Nighthawks were in favor of the bills while the “mixedbloods,” progressive element were generally opposed.'*® By this time, the Keetoowahs were divided into approximately six factions: (1) the Keetoowah Society, Inc., led by Levi Gritts and others, who had incorporated in 1905 in an attempt to preserve Cherokee government functions; (2) the Nighthawks, led by the Smith family, who had split from the Keetoowah Society over allotment in 1902; (3) the Seven Clan Society, a group within the Nighthawks comprised of about 120 families, and three other small groups.!*? The Nighthawks appear to have been the first among the Cherokee to seek to organize as a band under Section 3 of OIWA. Section 3 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 bylaws.... The Secretary of the Interior may issue to any such organized group a charter of incorporation, which shall become operative when ratified by a majority vote of the adult members of the organization voting... .!°° 40 Kehoe, supra note 29, at 18-19. 41 BLACKMAN, supra note 139,at 75. See Act of June 18, 1934, Pub. L. No. 73-383, § 13, 48 Stat. 984, 986-87. 142 See 78 CONG. REC. 11,125 (June 12, 1934) (statement of Sen. Elmer Thomas) (“My state is different from the other Indian states . .. . Our Indian reservations have heretofore been allotted, and there are left in Oklahoma no great Indian reservations ....”). See also S. REP. NO. 74-1232, at 6 (1935) (“In Oklahoma the several Indian reservations have been divided up, the Indians having first chance at the selection of allotments or farms. After the Indians were allotted lands of their selections, the balance of the several reservations were divided up into farms and disposed of to white settlers; hence, as a result of this program, all Indian reservations as such have ceased to exist and the Indian citizen has taken his place on an allotment or farm and is assuming his rightful position among the citizenship of the State.”). 43 Toney, supra note 31, at 136. '44 Act of June 26, 1936, Pub. L. No. 74-816, 49 Stat. 1967. '45 Smithers, supra note 94, at 16 (“Largely an economic tool, it became a mechanism for reclaiming land and federal recognition of political sovereignty.”). 146 S, REP. NO. 74-1232, at 7 (1935). 147 See BLACKMAN, supra note 139, at 134. M48 LEEDS, supra note 28, at 14; Toney, supra note 31, at 132-33. \49 See generally Wisdom, The Keetoowah Society, supra note 124.. 150 Act of June 26, 1936, Pub. L. No. 74-816, § 3, 49 Stat. 1967. 17 In May 1937, a group of Bureau of Indian Affairs employees,'*! including anthropologist Charles Wisdom, met with the Nighthawks to discuss the possibility of organization.'"? Wisdom thereafter conducted research and interviews among the Nighthawks and other Keetoowah factions to assist the Department in determining whether the Nighthawks qualified as a “recognized tribe or band” under OIWA.!°? Wisdom’s resulting report, “The Keetoowah Society of the Oklahoma Cherokee,” presents the information he collected without coming to firm conclusions. After discussing the ancient origins of the word “Kituwah” and the formation of the Society around the time of the Civil War, the report moves into a discussion of the six Keetoowah factions. The report is dominated by lengthy direct quotes from secondary sources or from Wisdom’s interviews. Wisdom sums up the report by observing that, while the Nighthawks evolved into a “primarily religious and cultural” organization, the other Keetoowah groups are all “political in character,” meaning that their purpose is to advance political agendas such as enforcing Cherokee treaties.'* Regional Coordinator A. C. Monahan transmitted Wisdom’s report to the Commissioner of Indian Affairs, asking “whether or not any of the Keetoowah groups may be regarded as a distinct ‘band’ for organization under the Indian Reorganization Act or the Oklahoma Indian Welfare Act.”!5> The report was forwarded to Acting Solicitor Frederic Kirgis,'°° who concluded in a brief opinion that “neither the Keetoowah Society nor any of its factions can be considered a band” because “[i]t is neither historically nor actually a governing unit of the Cherokee Nation, but a society of citizens within the Nation with common beliefs and aspirations.”!>” It is not entirely clear to whom Kirgis believed himself to be referring when he used the phrase “the Keetoowah Society,” but given the origins of the inquiry and the way the opinion is treated in later correspondence, it seems he was referring to the Nighthawks. Meanwhile, the office of the Principal Chief of the Cherokee Nation was still being filled by presidential appointment. The coalition known as the Cherokee Executive Council, which '51 The Bureau of Indian Affairs was not called the Bureau of Indian Affairs until 1947, but I use the modern name here for simplicity. See What Is the BIA’s History?, U.S. DEP’T OF THE INT. INDIAN AFFS. (Jan. 12, 2021, 6:27 PM), https://www.bia.gov/faqs/what-bias-history. 152 | EEDS, supra note 28, at 14; Baker, supra note 28, J 15. '33 Letter from Charles Wisdom, Collaborator, Div. of Anthropology, to A. M. Landman, Superintendent of the Five Civilized Tribes (May 19, 1937) (“As you know, the Redbird Smith group near Gore are anxious to organize as a tribe, and it is necessary now for this office to indicate whether or not the Gore group can be considered as a band or tribe.”) (Cherokee Nation Ex. 33). '54 Wisdom, The Keetoowah Society, supra note 124, at 20. '55 Letter from A.C. Monahan, Reg’] Coordinator, to Comm’r of Indian Affs. (June 28, 1937) (Cherokee Nation Ex. 37). 156 Wisdom wrote a separate report about the Nighthawks entitled “Memorandum on the Tribal Character of the Keedoowah Society of the Cherokee” but there is no indication that this report was transmitted to or considered by the Acting Solicitor. In the “Keedoowah” memorandum, Wisdom wholeheartedly concluded that the Nighthawk “organization is today and has always been functioning exactly like that of a tribe, and not like that of a mere segment of a tribe.” Charles Wisdom, Memorandum on the Tribal Character of the Keedoowah Society of the Cherokee 8 (1937) (unpublished manuscript) (UKB Ex. 8; Cherokee Nation Ex. 36). '57 Memorandum from Frederic L. Kirgis, Acting Solic., to the Comm’r of Indian Affs. (July 29, 1937), reprinted as Keetoowah—Organization as Band, in I OP. SOLIC. ON INDIAN AFFS. 774 (Cherokee Nation Ex. 5; UKB Ex. 31). 18 included Keetoowah groups, continued to meet to transact Cherokee business.'** In August 1938, the Council elected Bartley Milam as Principal Chief.!°? “On April 21, 1941, acting in the spirit of his ‘New Deal,’ President Roosevelt appointed Milam Principal Chief of the Cherokee Nation,” a position which Milam held until his death in 1949,' The United Keetoowahs Undaunted by Kirgis’s opinion regarding the Tribal character of individual Keetoowah factions, Bureau of Indian Affairs officials and Keetoowah leaders continued to explore opportunities for organization of the Keetoowahs pursuant to Section 3 of OIWA.'*! When Levi Gritts made a request to organize the Keetoowah Society, Inc., under OIWA, several Department officials “interviewed members of the various Keetoowah factions and found that there was considerable sentiment [to organize] for the benefit of the higher degree blood Cherokee Indians who constitute a portion of the original Keetoowah organization.”! The Department issued a notice of a meeting for the Keetoowah factions to come together in March 1939.'® All of the factions except the Nighthawks attended, and the general sentiment was to continuing exploring the idea of organizing as a reunited group.' Over the course of the summer, a provisional constitution of the “United Keetoowah Cherokee Indians” was drafted and then adopted.'® The UKCI membership thereafter elected twenty-seven councilmen and four officers.'°° Although Levi Gritts desired the role, John Hitcher was elected as Chief.'°’ “After feuding with the newly elected Chief, Gritts withdrew and took some of the [Keetoowah] Society, [Inc.] members with him.”'®® Nevertheless, the bulk of the Keetoowahs remained committed to the reunited organization.'® In February 1942, the United Keetoowah council, now calling itself the “United Keetoowah Cherokee Band of Indians in Oklahoma,” passed a resolution requesting Secretarial recognition as a band under OIWA and approval of a slightly revised constitution.!° The BIA was torn on how to proceed. The 1937 Kirgis opinion did not clearly cover a united Keetoowah 158 See supra at Twilight. '59 Kehoe, supra note 29, at 26; Robertson, supra note 25, J 37. 160 CONLEY, supra note 19, at 205; Toney, supra note 31, at 148; Robertson, supra note 25, § 50. '61 Kehoe, supra note 29, at 20; LEEDS, supra note 28, at 15. 162 Memorandum from Ben Dwight, Org. Field Agent, to A.C. Monahan, Reg’! Coordinator | (June 13, 1939) (Cherokee Nation Ex. 38) [hereinafter Dwight Memo]; Toney, supra note 31, at 149. 163 Dwight Memo, supra note 162, at 1; Toney, supra note 31, at 149. 164 LEEDS, supra note 28, at 15; Toney, supra note 31, at 149-50. 165 LEEDS, supra note 28, at 16; Dwight Memo, supra note 162, at 2. 166 LEEDS, supra note 28, at 16. 167 Id. 168 fd; Kehoe, supra note 29, at 24. '69 See Dwight Memo, supra note 162, at 2 (“[T]he rank and file of the various Keetoowah factional memberships are in favor of a united Keetoowah organization.”); Resolution (Feb. 20, 1942) (“[S]aid organization is in effect and basically a reunion of the members or descendants of that group of Cherokees known over a period of One Hundred years or more as the Keetoowahs.”) (UKB Ex. 35). '70 Resolution (Feb. 20, 1942) (UKB Ex. 35); Constitution and By-Laws of the United Cherokee Band of Indians in Oklahoma (1942) (UKB Ex. 39). See also LEEDS, supra note 28, at 19. 19 organization, but it did cast doubt on the ability of Keetoowahs generally to qualify as a band under OIWA.!7! On one hand, BIA officials A. C. Monahan and D’Arcy MeNickle were supportive of the Keetoowahs. In 1940, Monahan wrote: “I see no reason why the Keetoowahs could not be recognized by the Department of the Interior as the active successor of the Cherokee Nation, particularly of that part of the Cherokee Tribe which contains a high degree of Indian blood.”!” In 1944, MecNickle opined: 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.!7 On the other hand, Assistant Commissioner William Zimmerman seemed resigned to the 1937 Kirgis opinion, writing in 1942 that “[t]he 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 atribe.”!’4 And BIA Chief Counsel Theodore Haas remained skeptical of both Monahan’s and MeNickle’s positions.!” Ultimately, BIA officials conceded that their knowledge of the history of the Keetoowahs remained incomplete.'”° Instead of returning to the Solicitor to request a new opinion, the consensus was to seek legislation to recognize “the Keetoowah Indians of the Cherokee Nation of Oklahoma” as a band under OIWA.'”” This consensus was memorialized in a June 1944 memo from Chief Counsel Theodore Haas (1944 Haas Memo). Cherokee Nation Principal Chief Milam was supportive of the Keetoowahs’ bid to organize and the plan to pursue legislation.'”8 '71 See Letter from William Zimmerman, Jr., Assistant Comm’r, to Mr. Frank J. Boudinot (Apr. 13, 1940) (“When the question of organizing the Kee-too-wah Indians was first presented to the Department, we had no evidence that the Kee-too-wahs would or could agree to work together as one body. . . . If [more] facts were known, it is conceivable that the findings of the Solicitor as regards the nature of the Society would be modified and even reversed.”). '72 Memorandum from A. C. Monahan, Reg’! Coordinator, to the Comm’r of Indian Affs. (June 15, 1940) (Cherokee Nation Ex. 41). 3 McNickle Memo, supra note 87, at 3. 14 Letter from William Zimmerman, Jr., Assistant Comm’r, to J. B. Milam, Principal Chief, Cherokee Nation (Mar 12, 1942). '75 Memorandum from Theodore Haas to D’Arcy McNickle (Feb. 7, 1941) (Cherokee Nation Ex. 42); Memorandum from Theodore Haas, Chief Counsel, to William Zimmerman, Jr., Assistant Comm’r (June 6, 1944) (Cherokee Nation Ex. 48) [hereinafter 1944 Haas Memo]; see also Kehoe, supra note 29, at 21-22. 176 1944 Haas Memo, supra note 175. 177 Id. '8 Letter from J. Bartley Milam, Principal Chief, Cherokee Nation, to John Collier, Comm’r of Indian Affs. (Apr. 10, 1942) (UKB Ex. 36) (“[T]he only way we are going to accomplish anything worth while for our Indians of onequarter and more Indian blood would be to carry through some work that is now being undertaken by the Keetowahs, forming them into one band of Cherokees to be known as the Keetowah band of Cherokees, and have this put in effect by proper legislation.”); see also Kehoe, supra note 29, at 21-22. 20 The Keetoowah Recognition Act Just as Levi Gritts, Frank Boudinot, and the Keetoowah Society, Inc., had been leaders in Cherokee affairs during the early twentieth century, they continued to play an active role in lobbying the Department and Congress for a Keetoowah organization under OIWA.'” As noted above, Levi Gritts and a portion of the Keetoowah Society, Inc., members abandoned the United Keetoowah group after John Hitcher was elected Chief in lieu of Gritts. Whether Gritts and Boudinot’s efforts in the 1940s were strictly on behalf of the splinter Keetoowah Society, Inc.,!*° or aimed at assisting in the broader Keetoowah organization movement, their activities were instrumental in achieving the legislation that recognized “the Keetoowah Indians of the Cherokee Nation of Oklahoma.”!®! Assistant Commissioner William Zimmerman directed D’ Arcy McNickle to send a draft Keetoowah recognition bill to Levi Gritts and Frank Boudinot “with the suggestion that Senator Thomas and Representative Stigler sponsor the legislation[.]”'” Perhaps Zimmerman chose the Keetoowah Society, Inc. as the vehicle for the legislation because “[i]t was the only group which had legal representation in Washington . . . .”'®? Boudinot forwarded the draft bill to Representative William Stigler of Oklahoma,'™ who then introduced the bill as H.R. 5419 in September of 1944.'85 Although no action occurred on the Keetoowah recognition bill in the 78th Congress, Representative Stigler reintroduced the bill in the 79th Congress as H.R. 341,186 The text of both bills was identical, mirroring the language first set out in the 1944 Haas Memo: 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 Keetoowah Recognition Act was enacted on August 10, 1946.'88 The primary legislative history accompanying the bill is the Committee on Indian Affairs’ Report, the majority of which reproduces a March 1945 letter in support of the legislation from Acting Secretary of the Interior 179 | EEDS, supra note 28, at 20-21; see, e.g., Memorandum from D’Arcy MeNickle to John Collier, Comm’r of Indian Affs. (Apr. 5, 1944) (“Attached papers were left with me a few day ago by Levi B. Gritts, on behalf of himself and Mr. Boudinot.”). 180 By one account, the United Keetoowahs numbered around 5,000 while the Keetoowah Society, Inc., led by Gritts had a membership of only 100-200. Memorandum from W. O. Roberts, Superintendent, to William Zimmerman, Acting Comm’r of Indian Affs. (Jan. 5, 1948) (Cherokee Nation Ex. 31). 181 LEEDS, supra note 28, at 21. 182 Memorandum from William Zimmerman, Assistant Comm’r, to D’Arcy McNickle (June 16, 1944) (Cherokee Nation Ex. 50). 183 LEEDS, supra note 28, at 21. 184 Robertson, supra note 25, at Ex. 26 (attaching Letter from Frank J. Boudinot to the Honorable W. G. Stigler (Sept. 6, 1944)). 185 Robertson, supra note 25, J 41. 186 Id. 9 41-42; Kehoe, supra note 29, at 23. 187 See Robertson, supra note 25, | 41; see also 1944 Haas Memo, supra note 175. 188 Act of August 10, 1946, Pub. L. No. 79-715, 60 Stat. 976. 21 Abe Fortas.!®? The letter explains that “[t]he purpose of the bill is to recognize the Indians who belong to the Keetoowah Society, as a separate band or organization of Cherokee Indians, so that it may organize under section 3 of [OIWA].”!*° The letter recites the history of the Keetoowah Society from the origin of the word ““Keetoowah” through the formation of the Society in 1858, the Society’s opposition to allotment, and the Society’s incorporation in 1905. Finally, the letter recounts that “the Keetoowah Indians requested permission to organize” under OIWA in 1937 and that “[t]he 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.”!”! While the Keetoowah portion of the bill was enacted without amendment or debate, a subsequent section of the bill dealing with the Cheyenne and Arapaho Tribes caused the bill to be sent to conference.'®2 When the bill and conference report returned to the House, Representative Martin of Massachusetts asked: “Just what does the bill do?”!? Representative Stigler replied: “It allows two bands of Indians who call themselves Keetoowahs to organize and receive benefits under the Oklahoma Welfare Act.”!™ It is unclear to which two bands Stigler was referring, but perhaps to the Nighthawks and the Keetoowah Society, Inc., who both approached the Department about organization in the late 1930s, or to the United Keetoowahs and the Keetoowah Society, Inc., who continued to pursue organization into the 1940s. Perfecting the United Keetoowah Organization Following passage of the Keetoowah Recognition Act, it fell to the Department to determine exactly who would be recognized under the Act.'?> Complicating matters was the imprecise language used by Congress, Department officials, and even the Keetoowahs themselves in the decade leading up to the Keetoowah Recognition Act.'?® The “Keetoowah Indians of the Cherokee Nation of Oklahoma” was not a name used by any Keetoowah organization at the time of enactment. Within the Bureau of Indian Affairs, other impediments to Keetoowah organization were (1) turnover within the BIA from those knowledgeable of the Keetoowahs to new employees without that background, and (2) a shift in ethos away from reorganization and towards termination.!?’ Three different Keetoowah groups approached the Department seeking to organize under O[WA and the Keetoowah Recognition Act: the United Keetoowahs, the splinter Keetoowah Society, Inc., and the Seven Clans Society. While the Department briefly considered allowing the groups to organize as a confederation of independent organizations,'”* the intention all along had been to 189 H.R. REP. NO. 79-447 (1945). 190 Td. at 1. 191 Tq. at 2. '92 Robertson, supra note 25, { 42. 193 Id. at Ex. 7 (attaching 92 CONG. REC. 10,591 (July 31, 1946)). 194 Id. '95 Kehoe, supra note 29, at 23. 196 Td. at 25 (“The documents from this period can be confusing in that Government officials sometimes used the name Keetoowah Society when referring to the Ketoowah [sic] Cherokees as a whole or when referring to the organization formed in 1939 that ultimately became known as the United Keetoowah Band.”). 197 LEEDS, supra note 28, at 21-22. 198 See, e.g., Letter from William Zimmerman, Assistant Comm’r, to Reverend Jim Pickup (Jan. 20, 1947). 22 recognize a united organization that included “all persons claiming affiliation with the Keetoowah idea or philosophy.”!®? They concluded that “the United Keetoowah Band of Cherokee Indians is and should be the representative body employing the Keetoowah name. In 1946, Jim Pickup had succeeded John Hitcher as Chief of the united group, now calling itself the “United Keetoowah Band of Cherokee Indians in Oklahoma” (UKB).””! 99200 The last hurdle in perfecting the UKB organization was the question of how membership was to be defined in its constitution. In August 1949, UKB members voted to amend their 1939 constitution to extend membership to all persons residing in Oklahoma with 1/2 or more Cherokee Indian blood.?" Assistant Commissioner Provinse objected to this provision as too broad and recommended limiting membership to those identified on a 1949 UKB membership roll.23 After this and other minor changes were made, the Assistant Secretary pre-approved UKB’s Constitution, By-Laws, and Charter.2* The UKB membership ratified these organizing documents on October 3, 1950.7 Two Cherokee Tribes Around the same time, the group now known as the Cherokee Nation was also becoming more organized. In 1946, Congress passed the Indian Claims Commission Act to resolve with finality historical Tribal claims against the United States.?°° For Tribes with functioning Tribal governments, it was relatively straightforward to hire counsel to begin prosecuting such claims. For less organized Tribes like the Cherokee, a mechanism was needed to hire counsel through a representative process.”°’ Five Tribes Superintendent W. O. Roberts, in coordination with Principal Chief Milam, distributed a notice of a Cherokee national convention to be held on July 30, 1948.28 The purposes of the convention were to hire attorneys to appear before the Indian Claims Commission and to “select a Standing Executive Committee to assist the Tribal Officials in all Cherokee matters.”?° The July 1948 Convention was attended by Cherokees from a variety of factions: the United Keetoowah Band, the Eastern or Immigrant Cherokees, the Western or Old Settler Cherokees, 199 Letter from William Zimmerman, Acting Comm’r of Indian Affs., to W. O. Roberts, Superintendent of the Five Tribes 1 (Dec. 8, 1947) (Cherokee Nation Supplemental Ex. 12). 200 Letter from W. O. Roberts, Superintendent of the Five Tribes, to William Zimmerman, Acting Comm’r of Indian Affs. 2 (Jan. 5, 1948) (Cherokee Nation Ex. 31). 201 Toney, supra note 31, at 153; Kehoe, supra note 29, at 24. 202 Kehoe, supra note 29, at 25. 203 Letter from John H. Provinse, Assistant Comm’r, to W. O. Roberts, Superintendent, Five Civilized Tribes Agency | (Sept. 9, 1949). 204 Kehoe, supra note 29, at 25; LEEDS, supra note 28, at 36. 205 Kehoe, supra note 29, at 25; LEEDS, supra note 28, at 36. 206 Act of August 13, 1946, Pub. L. No. 79-726, ch. 959, 60 Stat. 1049. 207 See Letter from W. O. Roberts, Superintendent of the Five Tribes, to William Zimmerman, Jr., Acting Comm’r of Indian Affs. (Mar. 24, 1948) (Cherokee Nation Ex. 14). 208 Robertson, supra note 25, § 45. 209 Kehoe, supra note 29, at 27 (quoting Public Notice to All Duly Enrolled Cherokee Indians by Blood in Oklahoma (July 1, 1948) (Cherokee Nation Ex. 15)). 23 the Seven Clans Society, and the Texas Cherokees.”!° The convention passed a resolution authorizing Principal Chief Milam to appoint a permanent Standing Executive Committee of nine members who would then employ “[a]ttorneys to represent all duly enrolled Cherokee Indians by blood in Oklahoma” before the Indian Claims Commission.”!' The Executive Committee was also authorized “to exercise during recess any and all powers that this or any other assembly of the duly enrolled Cherokee Indians by blood in Oklahoma could rightfully [do] in regular convention assembled.””!? The Executive Committee conducted Cherokee business as needed through the mid-1970s, meeting with “varying frequency on an irregular basis.””'? After the death of Principal Chief Milam in 1949, the Executive Committee selected W. W. Keeler as his replacement.?!* President Truman made the election official by appointing Keeler to the position of Principal Chief.”!° UKB Chief Jim Pickup became a member of the Executive Committee in April 1950. Pickup, Keeler, and the Executive Committee worked together on a number of initiatives, including a plan to attract industrial development to a 40-acre tract on the Cherokee Reservation.?'® As of 1950, the Cherokee Reservation was occupied by two federally recognized Cherokee Tribes: the United Keetoowah Band of Cherokee Indians of Oklahoma led by its Council and Chief, and the Cherokee Nation led by the Executive Committee and Principal Chief.?"’ Congress did not provide detailed instructions regarding how these two Tribes were supposed to relate to each other and to the Cherokee Reservation. This M-Opinion seeks to clarify some of the questions raised by this history so the Department can carry out its duties to the Cherokees in a lawful manner. Discussion Land-in-trust applications are processed under the Secretary’s statutory and regulatory authority and the specific facts present before the Secretary or her designee at the time of the decision. This memorandum does not by itself constitute the approval of any particular fee to trust application, but rather examines whether UKB may have land in trust for gaming purposes within the Cherokee Reservation, which turns on questions of reservation status and jurisdiction. In the discussion below, I reach the following four conclusions relevant to this inquiry. First, I conclude that the Oklahoma Indian Welfare Act (O[WA) authorizes the Secretary to take land in trust for UKB. Second, I conclude that the Cherokee Reservation is UKB’s reservation for purposes of the Part 151 Regulations and that UKB may acquire land in trust status within the Cherokee Reservation pursuant to the on-reservation criteria of 25 C.F.R. § 151.9. Third, I 210 LEEDS, supra note 28, at 22-23; Robertson, supra note 25,445. Of note, Levi Gritts spoke at the convention on behalf of the Keetoowah Society, Inc., but left early when he perceived his voice was not being heard. See Toney, supra note 31, at 158. 2\! Resolution No. 3 (July 30, 1948) (Cherokee Nation Ex. 17). 212 7g 213 Kehoe, supra note 29, at 28. 214 1d; LEEDS, supra note 28, at 24. 215 Kehoe, supra note 29, at 28; Robertson, supra note 25, { 50. 216 Kehoe, supra note 29, at 37-39. 217 The modern iteration of the Cherokee Nation government, including legislative and judicial branches, was organized under a new constitution on June 26, 1976. Robertson, supra note 25, { 51. 24 conclude that any lands held in trust for UKB are under UKB’s exclusive jurisdiction and not subject to the supervening jurisdiction of the Cherokee Nation. Contrary to the Cherokee Nation’s assertions, the Treaty of 1835 does not guarantee the Cherokee Nation an exclusive right to govern the Cherokee Reservation. Fourth, I conclude that any trust lands acquired for UKB within the Cherokee Reservation qualify as “Indian Lands” eligible for gaming under IGRA. These conclusions, taken together, establish that the Secretary has the authority to take land within the Cherokee Reservation into trust for UKB as “on-reservation” acquisitions eligible for gaming under IGRA. A. OIWA authorizes the Secretary to take land in trust for UKB Section 5 of the Indian Reorganization Act (IRA) provides that the Secretary of the Interior may take land into trust for Indian Tribes.?!® At the time of its enactment in 1934, the IRA excluded many Oklahoma Tribes from certain of its provisions,”!? in part because of the contemporary belief that Oklahoma Tribes no longer had reservations and were on a path toward assimilating into broader American society.22° The opportunity to partake in the benefits of the IRA was extended to Oklahoma Tribes in 1936 with the passage of the O[WA. Section 3 of the OIWA provides that the charter of an incorporated Oklahoma Indian group may convey to such Tribes “the right . . . to enjoy any other rights or privileges secured to an organized Indian tribe under the [IRA]... .””2! The ability to petition the Secretary for land in trust is one of the primary rights or privileges secured to Tribes under the IRA,””” so Section 3 of the OIWA extends that right to O[WA-incorporated Tribes whose charters so specify. It necessarily follows that OIWA Section 3 authorizes the Secretary to take land in trust for properly chartered Oklahoma Indian groups.?” UKB formally organized under OIWA in 1950 by adopting a constitution, by-laws, and a corporate charter that were approved by the Assistant Secretary of the Interior on May 8, 1950, and ratified by UKB members on October 3, 1950. The UKB charter provides that its corporate purposes include, inter alia, “[t]o advance the standard of living of the Band through the development of its resources, [and] the acquisition of land... .””4 The charter also specifies a number of corporate powers related to land, including the power to “purchase, take by gift, 218 25 U.S.C. § 5108. 219 Act of June 18, 1934, Pub. L. No. 73-383, § 13, 48 Stat. 984, 986-87 (“Sections 2, 4, 7, 16, 17, and 18 of this Act shall not apply to the following-named Indian tribes, the members of such Indian tribes, together with members of other tribes affiliated with such named tribes located in the State of Oklahoma, as follows: Cheyenne, Arapaho, Apache, Comanche, Kiowa, Caddo, Delaware, Wichita, Osage, Kaw, Otoe, Tonkawa, Pawnee, Ponca, Shawnee, Ottawa, Quapaw, Seneca, Wyandotte, Iowa, Sac and Fox, Kickapoo, Pottawatomi, Cherokee, Chickasaw, Choctaw, Creek, and Seminole.”). 220 BLACKMAN, supra note 139, at 75, 81. 221.95 U.S.C. § 5203. 222 Carcieri v. Salazar, 555 U.S. 379, 403-04 (2009) (Stevens, J., dissenting). 223 In addition, Section | of O[WA directly authorizes the Secretary to take land into trust for groups organized under OIWA when the lands are “agricultural and grazing lands of good character and quality.” 25 U.S.C. § 5201. 224 Corporate Charter of the United Keetoowah Band of Cherokee Indians, Oklahoma { 1(b) (Oct. 3, 1950) (UKB Ex. 44). 25 bequest, or otherwise own, hold, manage, operate, and dispose of property of every description, real or personal.”?25 This language from UKB’s charter mirrors the authorization of corporate powers in Section 17 of the IRA,””° presumably because UKB and the Assistant Secretary intended that the UKB corporation would have all the rights of an IRA corporation, including the ability to have land taken into trust. Because UKB’s charter empowers UKB””’ to own “property of every description,” which includes beneficial title to land held in trust, and because Section 3 of the OIWA incorporates Section 5 of the IRA regarding land in trust as one of the rights and privileges secured to Tribes under the IRA, Section 3 of OIWA authorizes the Secretary to acquire land in trust for UKB. Indeed, the Tenth Circuit has already confirmed that the Department may take land into trust for UKB on the Cherokee Reservation. When the Cherokee Nation challenged the Department’s 2011 approval of UKB’s request for 76 acres in trust for community services purposes, the court held that, “[b]ecause it is undisputed that the UKB is a ‘recognized tribe or band of Indians residing in Oklahoma,’ that has incorporated pursuant to OIWA, the [Department] properly concluded that statutory authority exists for the Secretary to take [land] into trust for the UKB Corporation.” B. The Cherokee Reservation is UKB’s reservation for purposes of the Part 151 Regulations. Under the Part 151 Regulations, a Tribe’s request to take land into trust is evaluated under either the on-reservation criteria listed in 25 C.F.R. § 151.9 or the off-reservation criteria in 25 C.F.R. § 151.11.229 According to Cherokee Nation, UKB’s application must be considered under the criteria for off-reservation acquisitions because, in Cherokee Nation’s view, UKB does not have a reservation as defined in 25 C.F.R. § 151.2.° That definition provides: Indian reservation or Tribe’s reservation means . . . that area of land over which the Tribe is recognized by the United States as having governmental jurisdiction, except that, in the State of Oklahoma wherever historic reservations have not yet been reaffirmed, or where there has been a final judicial determination that a 225 Iq. J 3(r) (emphasis added). 226 25 U.S.C. § 5124 (“Such charter may convey to the incorporated tribe the power to purchase, take by gift, or bequest, or otherwise, own, hold, manage, operate, and dispose of property of every description, real and personal . . 227 Technically, the charter lays out the powers of the UKB corporation, not UKB the sovereign. But since the UKB corporation is merely the Tribe organized as a corporate entity, this is a distinction without a difference. 228 Cherokee Nation v. Bernhardt, 936 F.3d 1142, 1155 (10th Cir. 2019) (citations omitted). And because the Tenth Circuit has held that trust acquisitions under Section 3 of OIWA are not constrained by the definition of “Indian” in the IRA, id., I need not analyze whether UKB meets the IRA’s definition of “Indian,” including whether UKB was “under federal jurisdiction” in 1934. For purposes of Section 3 of OIWA, it is sufficient that UKB is a “recognized tribe or band of Indians residing in Oklahoma.” 25 U.S.C. § 5203. 229 On January 11, 2024, a revised and renumbered version of the Part 151 regulations went into effect. See 88 Fed. Reg. 86249 (Dec. 12, 2023). In this opinion, I will quote from and use the numbering from this new and current version of the regulations. UKB submitted its most recent fee-to-trust application in July 2022, which means that UKB has the option to request that BIA consider its trust application under the old or the new regulations. 25 C.F.R. § 151.17(a). My analysis here remains the same regardless of which option UKB chooses. 230 Letter from Sarah Hill, Cherokee Nation Att’y Gen., to Eddie Streater, BIA Reg’! Dir. 11-12 (Jan. 12, 2023). 26 reservation has been disestablished or diminished, Indian reservation means that area of land constituting the former reservation of the Tribe as defined by the Secretary.”?! Although UKB is located in the State of Oklahoma, the Cherokee Reservation has been reaffirmed by the Oklahoma Court of Criminal Appeals in accordance with the U.S. Supreme Court’s holding in McGirt v. Oklahoma.”** So the question to be analyzed is whether UKB “is recognized by the United States as having governmental jurisdiction” over the Cherokee Reservation, such that the Department should treat the Cherokee Reservation as UKB’s reservation for purposes of the Part 151 Regulations.” I conclude that the Cherokee Reservation is UKB’s reservation, and that the Department should review UKB’s fee-to-trust application using the on-reservation criteria of Section § 151.9. This conclusion is based on the following two findings: (1) that UKB has an ownership interest in the Cherokee Reservation as a successor in interest to the Treaty of 1846; and (2) that Congress intended for UKB to possess governmental jurisdiction over the Cherokee Reservation and enjoy the benefits of the OIWA on its own reservation when it enacted the Keetoowah Recognition Act. 1. UKB has an ownership interest in the Cherokee Reservation under the 1846 Treaty. The UKB and Cherokee Nation have long disputed UKB’s claimed right to assert governmental jurisdiction within the Cherokee Reservation. At the heart of this dispute is the question of whether UKB is a successor in interest to the Cherokee Indians who signed the treaties establishing and affirming the Cherokee Reservation. This question of treaty successorship is controlling to the question of UKB’s jurisdiction because only a treaty Tribe?*4—.e., the treaty signatory, or a successor in interest to the treaty signatory—is entitled to exercise treaty rights relating to the Cherokee Reservation, including the ownership rights to the Cherokee Reservation under the Treaty of 1846.7>> And the Secretary presumes that Tribes have jurisdiction over their current reservations and all other lands constituting Indian country when it applies the Part 151 Regulations.?*° 73195 C.F.R. § 151.2. 232 See, e.g., Hogner v. State, 500 P.3d 629, 634-35 (Okla. Crim. App. 2021); Spears v. State, 485 P.3d 873, 876-77 (Okla. Crim. App. 2021). 233 For ease of reference, I will employ the term “Cherokee Reservation” throughout this section regardless of historical context because McGirt confirmed that the Cherokee Reservation has always existed. Thus, I will generally not refer to the Cherokee Reservation as a “historical reservation” or “former reservation” even where those involved at the time may have believed that the reservation no longer existed. The term “Cherokee Reservation” is not meant to imply that governing authority or jurisdiction over the reservation belongs exclusively to either the Cherokee Nation or UKB. 234 For purposes of this M-Opinion, the “signatory Tribe” designation refers to the historical Tribe whose representatives actually signed the treaty, and the term “treaty Tribe” refers to the modern-day Tribe that has established its right to exercise the treaty rights of a signatory Tribe. See United States v. Washington, 641 F.2d 1368 (9th Cir. 1981). 235 Treaty with the Cherokees, Aug. 6, 1846, 9 Stat. 871. 236 See Comanche Nation of Okla. v. Zinke, 754 Fed. Appx. 768, 773 (10th Cir. 2018) (“And the Bureau of Indian Affairs (‘BIA’) presumes that a tribe has governmental jurisdiction over any parcel within the borders of its reservation.”). 27 The UKB and Cherokee Nation offer two competing views on the issue of treaty successorship. UKB’s position is that (1) the Tribal signatory to the relevant Cherokee treaties, including the Treaty of 1846, is the “historical” Cherokee Nation; (2) the “historical” Cherokee Nation has been dissolved and no longer exists; and (3) that both UKB and Cherokee Nation are entitled to exercise treaty rights as joint successors in interest to the historical Cherokee Nation. UKB argues it is a successor in interest because it meets both requirements of the successorship test established by the Ninth Circuit in United States v. Washington, which requires a modern group to show (1) descent from a signatory Tribe; and (2) that it has maintained an organized Tribal structure.”°7 The Cherokee Nation rejects the notion that the Tribal signatory to the Cherokee treaties was a “historical” Cherokee Nation that no longer exists. The Cherokee Nation instead asserts itself as the signatory Tribe, arguing it is “the same sovereign as the original Cherokee Nation” that signed treaties with the United States and that it has existed as an entity on a continuous basis since treaty times. On the successorship question, Cherokee Nation argues that the Ninth Circuit’s more recent decision in United States v. Oregon?*® sets out the applicable standard of “political cohesion,” and that UKB’s claim fails under this standard because UKB politically separated itself from the signatory Tribe (Cherokee Nation) when it organized under the O[WA. The Cherokee Nation accordingly asserts that it is “the only Indian tribe that holds ‘rights and/or jurisdiction’ within the Cherokee Nation Reservation . . . .””3° For the reasons set forth below, I conclude that UKB has an ownership interest in the Cherokee Reservation as a successor in interest to the Cherokee Indians who signed the Treaty of 1846 (“1846 Treaty Cherokees”).”° In the analysis below, I first examine the reservation-ownership provision in the Treaty of 1846, which established that there was one unified Tribe that owned the Cherokee Reservation in common for all of its citizens. I then apply the successorship test from Washington to conclude that UKB is a successor in interest to the 1846 Treaty Cherokees because (1) UKB members descend from the Cherokee Indians who signed the Treaty of 1846; and (2) UKB has maintained an organized Tribal structure. Finally, I address the reasons why the political cohesion standard from Oregon is inapplicable to cases such as this, where the modern group claiming treaty rights was formed as a subgroup within the Tribal signatory and should therefore be considered as part of, rather than separate from, the Tribal signatory group. 237 641 F.2d 1368, 1371 (9th Cir. 1981). 238 29 F.3d 481 (9th Cir. 1994). 239 Cherokee Nation Submission, supra note 5, at 11. 240 The Treaty of 1846 was signed by delegations representing the Western Cherokee (Old Settlers) and the two Eastern Cherokee factions (Government Party and Treaty Party). For purposes of this M-Opinion, the term “1846 Treaty Cherokees” refers to this collective group of Cherokees in Oklahoma that signed the Treaty of 1846. 241 The political cohesion test from Oregon is inapplicable and, as discussed below, the successorship test from Washington does not exactly fit the facts here; however, these Ninth Circuit tests, which were developed in the context of treaty fishing right claims under the Stevens Treaties of 1854-1855, are the only legal tests articulated by federal courts for determining treaty-Tribe successorship status. They are also the tests that Cherokee Nation and UKB rely on in making their respective arguments concerning UKB’s treaty-Tribe status. For these reasons, I adopt the Ninth Circuit’s tests as the appropriate framework for evaluating the specific question before me concerning UKB’s claim of treaty rights without taking a position on whether and when these tests would be applicable in any other context. 28 i. The Treaty of 1846 secures the 1846 Treaty Cherokees’ ownership rights in the Cherokee Reservation. Through a series of treaties with the United States from 1817 to 1866, the Cherokee Indians ceded their aboriginal lands and migrated or were forcibly removed to the Indian Territory in what is now eastern Oklahoma. The Treaty of 1846 was the first treaty signed after the removal of the remaining Cherokee Indians living east of the Mississippi River and is relevant here because it not only “unified the Cherokee people in Oklahoma as one tribe,”””* but also vested this unified Tribe with ownership rights in the Cherokee Reservation. Before turning to the Treaty of 1846, it is important to understand the historical context in which the Treaty of 1846 was negotiated and signed. As noted earlier, the Cherokee people were once divided into two separate political branches: the Cherokee Nation east of the Mississippi (Eastern Cherokee) and the Cherokee Nation west of the Mississippi (Western Cherokee). The Cherokee people historically “existed as a separate and distinct Nation, in the possession and exercise of the essential attributes of sovereignty,”2” until the Treaties of 1817 and 1819, which divided the Cherokee people into the Western Cherokee and Eastern Cherokee branches.” The two branches were governed by their own respective chiefs and laws and functioned as separate political communities. In 1828, the United States negotiated separately? with “the undersigned, Chiefs and Head Men of the Cherokee Nation of Indians, West of the Mississippi,” who agreed to cede their Arkansas lands in exchange for lands in present-day northeastern Oklahoma that were to become the core of the present Cherokee Reservation.”“© The Eastern Cherokee were not parties to the 1828 Treaty,?*’ but subsequently migrated or were forcibly removed to Oklahoma following the Treaty of 1835. At the time of removal, the Eastern Cherokee had become divided into two factions—a minority faction that supported removal to the west and entering the Treaty of 1835 (the “Treaty Party”), and the larger majority of the Eastern Cherokee who resisted removal and opposed the Treaty of 1835 (the “Government Party”). In December 1835, the Treaty Party signed a treaty with the United States agreeing to removal “with a view to reuniting [the two branches] in one body and securing a permanent home” for the Cherokee people.?** ?42 Kehoe, supra note 29, at 44. 243 Robertson, supra note 25, at Ex. 11 (attaching The Act of Union Between the Eastern and Western Cherokees, the Constitution and Amendments, and the Laws of the Cherokee Nation, Passed During the Session of 1868 and Subsequent Sessions (1870)). 244 See Cherokee Trust Funds, 117 U.S. 288, 293 (1886) (“[T]he Cherokee Indians, both those residing east and those residing west of the Mississippi, formerly constituted one people and composed the Cherokee Nation; . . . by various treaty stipulations with the United States they became divided into two branches, known as the Eastern Cherokee and the Western Cherokees ... .”). 245 Id. at 298-99 (noting that the Treaty of 1828 “was the first time the Cherokees west of the river [Western Cherokee] were recognized as so far a distinct and separate political body from the Cherokees east of the river [Eastern Cherokee] as to call for separate treaty negotiations with them”). 246 Treaty with the Western Cherokee arts. II, IV, May 6, 1828, 7 Stat. 311. 247 EF. or Emigrant Cherokees and W. or Old Settler Cherokees v. United States, 88 Ct. Cl. 452, 464 (1939). 48 Treaty of 1835, supra note 34, preamble. 29 The arrival of the Eastern Cherokee “immigrants” exacerbated tensions and conflict among the three groups”“°—the Western Cherokee and the two Eastern Cherokee factions.”° In 1839, the Eastern Cherokee and a small group of Western Cherokee signed an “Act of Union,” which was intended to unite the Eastern and Western Cherokees under one government.”>! But the Western Cherokee government refused to ratify the Act of Union?” and tensions continued until the groups concluded the Treaty of 1846, which was signed by representatives of each of the three groups to settle all disputes among themselves and with the United States.” The Treaty of 1846 legally unified the Cherokee factions and officially merged the Eastern and Western Cherokee governments into “one nation, sharing one land and one law.”2>4 The Treaty of 1846 was a treaty between the United States and “the whole Cherokee people” in Oklahoma, as represented by the delegates who signed on behalf of the Western Cherokee (Old Settlers) and the two Eastern Cherokee factions (Government Party and Treaty Party).?°> After entering into the Treaty of 1846, “the Western Cherokee government was dissolved” and the Western Cherokee became “citizens of the Cherokee Nation.”?*° The Treaty of 1846 “was a compact between three parties, the United States, the Eastern, and the Western Cherokees,” intended “to secure peace in the Cherokee country.””°’ To that end, Article 2 of the Treaty of 1846 provided that “[a]ll difficulties and differences heretofore existing between the several parties of the Cherokee Nation are hereby settled and adjusted, and shall, as far as possible, be forgotten and forever buried in oblivion.”?°® As relevant here, the parties also agreed that lands ceded to the Cherokees in Oklahoma would “be and remain the common property of the whole Cherokee people . . . .”"°” With respect to the 249 Kehoe, supra note 29, at 8 (“The continuing tension between the three major groups of Cherokees sometimes manifested itself in acts of murder and violence that can be described as political in nature, although they were often also acts of revenge on behalf of family members or friends harmed by a rival group.”). 250 Robertson, supra note 25, 12 (“The pro-removal Treaty Party immigrants were welcomed by the western Cherokees, but the arrival of the much larger anti-removal Government Party group (numbering approximately 11,000) triggered conflict among the three groups.”). 25! Jd. at Ex. 11 (attaching The Act of Union Between the Eastern and Western Cherokees, the Constitution and Amendments, and the Laws of the Cherokee Nation, Passed During the Session of 1868 and Subsequent Sessions (1870); stating “we, the People composing the Eastern and Western Cherokee Nation, in National Convention assembled, by virtue of our original and undeniable rights, do hereby solemnly and mutually agree to form ourselves into one body politic, under the style and title of the CHEROKEE NATION.”). 252 Baker, supra note 28, { 10. 253 Robertson, supra note 25, § 15. 254 Id. § 16; see also Cherokee Nation v. United States, 270 U.S. 476, 479 (1926) (citation omitted) (“Ultimately the Eastern Cherokees . . . and the Old Settlers [Western Cherokees] were united in a common government again by the Treaty of 1846.”). 255 FE. or Emigrant Cherokees and W. or Old Settler Cherokees v. United States, 88 Ct. Cl. 452, 465 (1939) (“Controversies having arisen between the Cherokees west of the Mississippi River, known as the Old Settlers, and those east of the Mississippi, known as the Emigrant Cherokees, with respect to the ownership of the various tracts of land and their interest therein, a treaty was entered into in 1846 whereby it was agreed that the lands occupied by the Cherokee Nation should be for the common use and benefit of the whole Cherokee people.”). 256 W. Cherokee Indians v. United States, 27 Ct. Cl. 1, 54 (1891); see also Cherokee Nation, 270 U.S. at 479 (citation omitted) (“Ultimately the Eastern Cherokees . . . and the Old Settlers [Western Cherokees] were united in a common government again by the Treaty of 1846.”). 257 W. Cherokee Indians, 27 Ct. Cl. at 36. 258 Treaty with the Cherokees art. II, Aug. 6, 1846, 9 Stat. 871. 259 Id, at art. IV. 30 [OCR skipped on page(s) 31-56] [Read from a scan; the first 30 pages.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aunited_keetoowah_cherokee%3A19867e57b3b898ca. Public record. Not legal advice.