Monday, December 12, 2011

Keetoowahs and Cherokee Nation enter Contested Waters

From this point on, the story of the Keetoowahs and the Cherokee Nation gets into contested waters. Before setting off on today’s episode, I will note again that both history and law are very interpretive endeavors. The version I am giving is one that is contested at some points by the UKB and its supporters. But the thing to remember is that in the end, it doesn’t matter what my version is, or what the UKB’s version is, or what anyone’s version is. The only version that matters is the one that is accepted by the federal courts. And the one I am offering here is the one that the courts have upheld – several times now.

The date of termination of the Cherokee Nation had been set as March 4, 1906. But tribal termination requires a piece of legislation to be achieved. And on March 4, 1906, no such legislation had been drafted or introduced. Instead of termination legislation, a different kind of legislation was in the works. (As an aside, the idea that the United States could put an end to the Cherokee Nation is laughable. Short of outright genocide, that is not within their power. So “termination” really means that they would end their recognition of us, just as the US does not recognize certain other governments in the world, for instance.)

On April 26, 1906, the Five Tribes Act was passed in Congress. Intended to tie up loose ends resulting from the complexity of the allotment process, the legislation was also necessitated by the fact that oil had been discovered midway through the allotment process. If tribal governments were terminated, the leasing process would be complicated by the need to negotiate with literally tens of thousands of individual allottees. It was an expediency to continue the five tribal governments for the purpose of signing off on leases, transfers of allotments, etc.

Although tying up the final affairs of the allotment process, the Act reversed the march toward tribal terminations. Instead of ending the federal relationship and recognition with the Five Tribes, Section 28 the 1906 Act expressly continued “in full force and effect” the governments of the Five Tribes! (See first attachment)

So the Cherokee Nation, or actually the federal recognition of the Cherokee Nation, was never terminated. This counters one of the arguments of the UKB and its supporters that there is an “old” Cherokee Nation that ended in 1906 and a “new” Cherokee Nation of Oklahoma that came into existence in 1975 with the Constitution of that year. But the Five Tribes Act of 1906 does not terminate the Cherokee Nation, in fact quite clearly does exactly the opposite. Again, although the UKB and its supporters may disagree, the only interpretation that matters is that of the federal court – and the federal court has said several times that the contemporary Cherokee Nation is the same government that existed in the 1800s. There has been no legal break in the continuum of its existence.

In the first decades of the twentieth century the ceremonial Nighthawk Keetoowah Society continued to function at ceremonial grounds throughout northeastern Oklahoma. Although the number of practitioners began to diminish again after the rejuvenation of the allotment period, there was a continuous lineage of practice that exists to this day. The political Keetoowah Society, Inc., also dwindled as an incorporated entity, after the government of the Cherokee Nation was “expressly continued” by federal statute, rather than terminated, since their action had been taken only in anticipation of the Cherokee Nation’s loss of recognition. These Keetoowahs resumed their grassroots, community-oriented activities and in these early decades of the 1900s, several organizations, all offshoots of the old Keetoowah Society, Inc., emerged, functioned for a time, and then died out.

These organizations and others were important from the 1920s through the ‘40s as the Cherokee Nation’s government only nominally functioned throughout those years. A consortium of grassroots organizations thus became the primary collective decision-making mechanism among the Cherokees. By the 1930s, as federal Indian policy was beginning to be somewhat more favorable toward Indians, legislation was passed in 1934 called the Indian Reorganization Act (IRA). It gave tribes that would agree to reorganize under its corporate business model the possibility to access additional federal programs for Indians, including supports for cultural arts enterprises and lending cooperatives for small business development.

Initially tribes in Oklahoma rejected inclusion in the IRA, but after observing some of the benefits to those tribes that had organized under it, a number of tribes in Oklahoma got together to request a similar act that would pertain to them. And so, in 1936, the Oklahoma Indian Welfare Act (OIWA) was passed. This Act was similar to the IRA in that it offered the same types of programs. It was also similar in that it demanded a corporate model of organization, rather than a governmental model, of those tribes that adopted it. (See attachment). While the tribes in the central and western part of Oklahoma organized under this legislation, initially none of the Five Tribes did.

But within the Cherokee Nation, the politically-oriented Keetoowah organizations made an appeal in 1937 to the Bureau of Indian Affairs to be organized as a “…band or tribe of Indians…” under the terms of Section 3 of the OIWA. The Bureau rejected this petition on the basis that the Keetoowahs were not different from the Cherokee Nation, in fact were a part of the Cherokee Nation, and the Cherokee Nation was already recognized by the United States.

But the question remained: without formally organizing under the OIWA, would the Cherokee Nation be able to access the programs it offered?

That question would not be answered for several more decades and only after Congress created additional complications. More tomorrow…

(Dr. Julia Coates is a councilor on the Cherokee Nation Council)