Tribes, historians differ in views on true successor to '1839 Cherokees'

Jun. 24—In September 1839, a group of Cherokees convened in Tahlequah to frame a new constitution. Today, two Cherokee tribes exist in Tahlequah: the Cherokee Nation and the United Keetoowah Band of Cherokee Indians.

As it stands today, the UKB asserts it is a "successor in interest" to the historical Cherokee Nation. Meanwhile, the Cherokee Nation — also known as the Cherokee Nation of Oklahoma — claims it remains the tribe for which the 1839 Constitution was created, and has repeatedly insisted the UKB's claim to be a successor in interest is false.

"My argument is they changed their name from Cherokee Nation of Oklahoma to Cherokee Nation as a cosmetic ruse so people would think they are the same entity," said David Cornsilk, a dual-enrolled member of both tribes, genealogist and historian. Cornsilk, a former journalist, believes the tribe known as the Cherokee Nation today is not the same as the one from 1839.

In 1975, Principal Chief Ross Swimmer led an effort to create a new constitution, for which the title read "the Constitution of the Cherokee Nation of Oklahoma." Then, the tribe drafted a new constitution in 1999 and ratified it in 2003, leaving the "of Oklahoma" portion out.

Chad Smith, who served as principal chief at the time, said the name has always been "Cherokee Nation," though.

"There wasn't an Oklahoma when Cherokees came to Indian Territory," Smith said. "So when the federal acts for allotment occurred, it was always the 'Cherokee Nation'. It was in 1975 that Ross Swimmer ... led the effort to update the constitution. If you look at the text of the constitution, it never changes the name. The only place the name is [changed] is in the printer's title."

In 1970, Congress passed the Five Tribes Principal Chiefs Act, allowing citizens and descendants of the Five Tribes to popularly select a principal officer. Shortly afterward, W.W. Keeler, who was the last appointed chief of the Cherokee Nation, became the first elected chief. He then nominated Swimmer to become chief, and his successor won with 29 percent of the votes, because there was no rule calling for a runoff to be held, said Cornsilk.

Swimmer led the charge in creating a new constitution. However, Cornsilk believes neither he or the tribe itself had the authority to create such a document.

"If you go back and look at the Principal Chiefs Act, the 1906 Five Tribes Act, the 1898 Curtis Act, nowhere in there does it authorize him to create a new constitution," he said. "So at that moment, we have — simultaneously — the old Cherokee Nation of 1839 and the Cherokee Nation of Oklahoma, operating at the same time with the same figurehead."

Cornsilk argued that Swimmer could have found a way to amend the 1839 Constitution so he would have the authority to reorganize the tribe under a new charter. But he didn't, and instead chose to write a new constitution that includes language saying the 1975 Constitution supersedes the old constitution.

"Well, I can say I own a Lexus or a Lamborghini, but that doesn't make my Toyota a Lamborghini," Cornsilk said. "So whatever language is in the 1975 Constitution that they're relying on cannot alter federal law. Their 1970 Principal Chief's Act only grants to the principal chief the power to promulgate rules to carry out an election; it did not give him authority to amend the constitution or create all of this sovereignty they claim that they have."

Smith, an attorney, said the argument that there is a "new" Cherokee Nation and an "old" Cherokee Nation has been used for decades. But he pointed to a court case — UKB v. Mankiller — he said puts it to rest.

The court's conclusion states it had "previously decided that the Cherokee Nation is the only tribal entity with jurisdictional authority in Indian Country within the Cherokee Nation."

"The Cherokee Nation has existed since time immemorial, evidenced by 39 treaties with the United States, and the federal government has consistently dealt with the Cherokee Nation as the Cherokee Nation," Smith said. "It seems like a very silly argument — you are who you are."

The UKB argues, though, that Cherokee Nation of today is falsely claiming to have rights from an 1835 treaty it did not sign.

"They weren't there; they refused it," said UKB Assistant Chief Jeff Wacoche. "They went as far as asking Congress not to ratify that treaty. It was ratified in 1838, and once it was ratified, that's what led to the Trail of Tears."

It was Major Ridge who signed the 1835 Treaty of New Echota, agreeing that he and his followers would move west to join the Old Settlers in Indian Territory. Chief John Ross, meanwhile, implored Congress to keep the removal from occurring. UKB Chief Joe Bunch said the federal government sent a delegation of the Old Settlers, led by Sequoyah, to the New Echota signing to welcome the rest of the Cherokee Nation to the West.

"About this time — 1838-1839 — those who gave up their citizenry to the Cherokee Nation, married whites, gave their allegiance to the state of Georgia or fled into the Great Smoky Mountains, became the federally recognized Eastern Band of Cherokee Indians," he said.

"Ancestors of the UKB formed a government with a written constitution in 1859 and were signatories to the Treaty of 1866, which established the current boundaries of the Cherokee reservation. The UKB is, therefore, a successor in interest to the 1866 treaty tribe and has full governmental jurisdiction with the reservation."

Meanwhile, Cornsilk said that not only does the UKB have equal rights to the Cherokee reservation, but so does the Delaware Tribe of Indians and the Shawnee Tribe. The Cherokee Nation's position, however, is that no other tribe has a legitimate claim to its reservation, which federal courts recently held had never been disestablished by Congress.

"The United Keetoowah Band was authorized by Congress in 1946 and came into existence in 1950," CN Attorney General Sara Hill said. "A long series of federal court cases have acknowledged the Cherokee Nation's authority over its lands to the exclusion of the UKB, including Buzzard v. Oklahoma Tax Commission in 1992 and in Cherokee Nation v. Bernhardt in 2020."

This is the first in a two-part series.