For many of the Five Tribes leaders, the 1871 Indian Appropriations Act (IAA) did not seem at odds with the two features they chose to emphasize and promote: civilization and sovereignty. But as the implications of the IAA wore on, Cherokee leaders realized they would need to deploy the same legal and public relations strategies they used during the long removal era to make their case to the larger United States in order to tackle the onslaught of legislation that flowed from the IAA and undermined the very features they sought to broadcast.Footnote ¹

Just five years earlier, following the Civil War, the Cherokee Nation had reestablished its government-to-government relationship with the United States. Reestablishing this relationship was the final major act of Principal Chief John Ross who died in Washington, DC, just after completing the 1866 treaty’s negotiation. The Cherokee Nation’s bitter division during the Civil War flowed from political divisions of the removal era. Those divisions remained on display in DC as two competing groups, the National Party, supporters of Ross, who had switched allegiances during the war to back the Union; and the Southern Cherokees, supporters of General Stand Watie, who had supported the Confederacy throughout the war, attempted to negotiate with the United States separately. The Southern Cherokees efforts to undermine Ross’s leadership fell apart when some Southern Cherokee leaders argued in favor of splitting the Cherokee Nation’s land base and dividing the Nation into two. This split would have also favored railroad interests who were eager to lay tracks through Indian Territory. Ultimately, a subset of Southern Cherokee leaders lent their support to Ross in order to maintain unity and better defend against the anti-Indian interests beyond the Nation.Footnote ²

Setting aside divisions and seeking internal reconciliation in the wake of contentious treaty negotiations took a similar form to what it had in the years following removal divides. Cherokee leaders recommitted themselves to social welfare programs, especially those that promoted their national sovereignty. As the IAA was rolling out in Washington, the Cherokee Nation was conducting a Children’s Census to determine the number of children orphaned by war so it could move forward with plans to open an orphanage and expand its public school system. It was also at work revising its legal codes to prepare for its new prison and securing funds to reopen its male and female seminaries.Footnote ³ As one of the Five Civilized Tribes, the Cherokees, as they had during removal, embraced the “civilized” moniker and stepped forward as an example to other tribes and to the larger United States of what was possible when the federal government funded assimilative programs and let tribes direct those efforts.

The Cherokee Nation grabbed on to features of the IAA that mapped onto their own goals of self-governance. The IAA contained reforms that sought to root out the abuses associated with Indian agents. For its part, the Cherokee Nation was eager to operate without an Indian agent. At least one leader advocated a full-time ambassador assigned to DC.Footnote ⁴ In fact, earlier treaties had provided for a funded delegate to Washington.Footnote ⁵ Had this goal been realized, it would have aided the Nation in what wound up being its most costly defensive strategy in the years to come—numerous delegations to Washington to fend off unwanted and often unwarranted legislation that impacted Indian Territory.

The irony that Cherokees seemed willing to overlook was that they counted on their prior treaties being honored to accomplish their own goals even as the IAA effectively blocked tribes in the future from forging the kinds of treaties with the federal government that would enable them to fund, implement, and support meaningful and culturally appropriate social, legal, and economic systems for their communities. Additionally, the IAA signaled the federal government’s intent to act unilaterally toward tribes from that point forward.Footnote ⁶ Whether Cherokee leaders were simply worn down by the war and the negotiations that followed and seeking conciliation or whether they truly believed they could shape the policy in their favor, they were quickly disabused of the latter.

In ten short years, the full implications of the IAA for even those deemed the most “civilized” tribes were clear. Timber interests. Railroads. Reformers. Territorialists. Intruders. Adjacent states.Footnote ⁷ Bills that impacted Indian Territory came from every quarter. Individuals and groups seeking to undermine the political and economic interests of the tribes sent representatives to DC and launched assaults on Native peoples and tribal sovereignty in the press. In response, the Five Tribes did the same. In 1881, the Cherokee Advocate, the Cherokee Nation’s national paper, ran the following in response to threats from the timber industry, but it applied more broadly:

By the 1880s, the Cherokee Nation’s “civilized” status was physically, symbolically, and rhetorically bound up with its individual and collective social welfare.

One of the key threats that emerged in the wake of the IAA was the federal government’s desire to establish a territorial court in Indian Territory to adjudicate all crimes committed. In 1882, Chief Dennis Bushyhead wrote in the St. Louis Globe Democrat, “Now the Indians of the Indian Territory do not want any United States Court, and they do not need any. They have efficient courts of their own.”Footnote ⁹ The Cherokee Nation had been operating a judicial system that paralleled most local courts in the United States by the 1820s. In 1843, the Cherokee Nation established agreements with the neighboring Creek Nation to adjudicate crimes involving Cherokee and Creek citizens. It had opened its national prison in 1875. It had begrudgingly accepted the court at Ft. Smith, but certainly did not want to hand over all of its criminal proceedings to the federal government.

The 1885 Major Crimes Act, which enabled the federal courts to adjudicate criminal cases involving eight crimes committed by Native people against other Native people within community boundaries, represented another step to usurp jurisdictional authority of Cherokee officials over Cherokee people. In the aftermath, the Cherokee Nation began enacting reforms aimed at bringing their laws more in line with federal criminal law. The same year the Major Crimes Act passed, Merrill Gates, a Protestant reformer and president of Rutgers College, summed his views on criminal jurisdiction up like this: “We must not only give them law, we must force law upon them.” But he did not stop there: “We must not only offer them education, we must force education upon them.”Footnote ¹⁰ The domino effect of the 1871 IAA enabled paternalist reformers like Gates to assert themselves as better suited to govern the individual lives of Native peoples as opposed to their Native nations, even as treaties explicitly guaranteed the Five Tribes those rights.

The net effect of the IAA was to usher in a legislative era that over time sought to erode and disregard the sovereign rights of all tribes, whether classified as civilized or not, with treaties in place or without. These jurisdictional intrusions required constant legislative vigilance on the part of Cherokee leaders as they forestalled attempts to circumvent their sovereignty. In 1896, the Cherokee Nation argued and later won a case in the federal courts that enabled them to carry out a final execution of a Cherokee man convicted of murder in Cherokee courts.Footnote ¹¹ The Curtis Act, passed in 1898, allotted tribal communal landholdings and dissolved what remained of the Cherokee Nation’s courts. It also paved the way for Oklahoma statehood, which would subject Cherokee people to both state and federal jurisdiction.

In one last gasp to mediate the destruction of tribal sovereignty and to maintain some semblance of local control in Native spaces, the Five Tribes organized a constitutional convention and proposed the State of Sequoyah, which comprised the eastern half of what became Oklahoma.Footnote ¹² The proposed map of the State of Sequoyah looks remarkably similar to those floating around social media in the wake of the Supreme Court’s McGirt v. Oklahoma decision, which answered the central question, did McGirt, a Creek Nation citizen, “commit his crimes in Indian country?” The question of criminal jurisdiction in cases involving those living within the boundaries of Native nations has been at the heart of Five Tribes’ federal legislative advocacy for more than two hundred years. In July of 2020, the Supreme Court answered yes to a question that Native nations had already asked and answered countless times. For a moment, the Supreme Court fulfilled the Nation’s promise at the end of the Trail of Tears.Footnote ¹³