The 1871 Indian Appropriations Act (IAA) was, at once, an astonishing milestone, and the logical progression in a series of events and deliberate legislative acts that gradually weakened tribal sovereignty. The Civil War provided some politicians the circumstances and ammunition they sought to advocate for increased western settlement and Native dispossession. In relatively quick succession, the Homestead Act (1862), the Treaties of 1866, the IAA (1871), and the Dawes Act (1887) changed the demographics of spaces claimed by Native Americans and led to an increase in the corporate exploitation of the trans-Mississippi West.Footnote ¹

Indian Territory (a significant portion of the modern-day state of Oklahoma) had been shaped by external forces since the U.S. government first began to forcibly move Chickasaw, Choctaw, Creek, Seminole, Cherokee, Osage, and other peoples there around the 1820s. These immigrant Indians, and the enslaved people of African descent in their nations, warily interacted with the southern Plains people already living in the region, and raids, thefts, and crimes perpetrated by both groups followed.Footnote ² While the United States created friction between Native Americans through the involuntary removal and resettlement of various Indian nations, this artificially constructed “Indian Territory” was initially meant to be just as its name suggests—a place where Native people would reside without interference from Americans.Footnote ³ But the Civil War would challenge the commitments made by American politicians, and the Five Tribes’ divided stances on their wartime allegiance provided the U.S. government with dubious justification for infringement upon this all-Native space.

Members of the Five Tribes fought for both the Union and the Confederacy and during the war, in 1862, the Commissioner of Indian Affairs, William P. Dole, recognized that this split sprung from the fact that the Five Tribes lived in an area now claimed by the Confederacy.Footnote ⁴ But some politicians saw the Five Tribes’ actions as a chance to renege on their promises to Native people. In the same year in which Dole voiced his understanding of the Five Tribes’ circumstances, his own Superintendent of Indian Affairs, W.G. Coffin, wrote that because the Five Tribes had “braves or warriors in arms against the United States government,” the U.S. government was absolved from “its obligations under treaty stipulations … the making of new treaties with all those tribes at an early day will be indispensable.” These new treaties, Coffin wrote, should be used to force Indians to “take their lands in severalty,” so that the “largest portion of the Indian Territory [could be] settled up by an enterprising and industrious white population.”Footnote ⁵ Under the guise of Native American disloyalty, Coffin made plans to divvy up Indian Territory. He had begun pitching this idea as early as August 1861, a mere four months after the war started, likely signifying that this idea was not new in his mind, only newly expedient.Footnote ⁶

In similar fashion, Senator James H. Lane of Kansas proposed a Senate inquiry into extending the boundaries of Kansas into Indian Territory.Footnote ⁷ At the same time, the federal government began to survey Indian land. Surveyor Thomas Spence thought not just of possible exploitation by corporations, but also individual settlers when he observed, “near Fort Washita and Fort Arbuckle are most eligible and beautiful tracts of country adapted to stock-raising and herding on the grandest scale.”Footnote ⁸ Whereas Indian Territory was previously meant to force Native people to reside on largely undesirable land, during and after the Civil War, the region was increasingly viewed as an alluring beacon to white Americans, uniting the interests of former Unionists and Confederates.

The 1862 passage of the Homestead Act, which allowed settlers to claim, at the most, 160 acres of free land in thirty states in the West and Midwest, signified significant American political support for mass expansion throughout the West. Central to this project was the unwillingness of white Americans to agree, en masse, that Native American land was off limits, even after they had created treaties that made this very promise.Footnote ⁹ While the Five Tribes’ land was not originally included as part of the Homestead Act, the march of the nineteenth century would change this.Footnote ¹⁰ After the war, politicians—many of whom were supporters of the Homestead Act—claimed that because the Five Tribes had made treaties with the Confederacy, they must agree to new treaties.

These new treaties, the Treaties of 1866, punished Native nations, essentially treating them as vanquished foes who must sustain sanctions. Indeed, the Five Tribes paid more of a price than their white Confederate counterparts, who were generally offered amnesty from any punishment.Footnote ¹¹ Conversely, from the Five Tribes, the United States demanded land cessions, allowance of railroads to pass through and be built in their nations, accommodation of other Indians in their nations, and emancipation and enfranchisement of the enslaved people of African descent in their nations.Footnote ¹² This treaty was a complete disavowal of tribal sovereignty. Americans’ hypocrisy in forcing upon Indian nations a decision about slavery that they, themselves, had just initiated and fought a war to determine, was blatant. But the United States had the upper hand because the Five Tribes risked losing annuity payments still owed them by the U.S. government—payments badly needed in the wake of a destructive conflict—if they did not consent.

In both the broad swath of quality-of-life changes covered by and the irrevocability of the coercive changes outlined, the Treaties of 1866 were a departure from previous Indian policy. They foretold the coming process of the opening up of Indian Territory and the land cessions delineated within them were carried out through the Dawes and Curtis Acts, the precursors to the creation of Oklahoma Territory and then Oklahoma statehood. But before these oft-referenced landmarks, the IAA built on the sentiment of the Treaties of 1866 to proclaim that Indian tribes would no longer be treated as sovereign nations. Rather, they would be considered wards of the federal government. From sovereign nations, to vanquished foes, to wards of the state in ten years—from the start of the Civil War to 1871—American politicians had transformed the way in which they conducted negotiations with Native nations. Thus, while the IAA was certainly not the first legislative act to weaken tribal sovereignty, it was representative of a sweeping change in the way the United States thought about Indian nations. Western Indian land would be open to white settlement and use almost at will, regardless of previous guarantees by the American government. The result in Indian Territory was staggering.

Between 1890 and 1907, the Black population of Indian Territory increased from 19,000 to over 80,000 and the white population increased from 109,400 to 538,500 as a result of the Homestead Act and the opening of the Unassigned Lands, while the Indian population remained stable at roughly 61,000.Footnote ¹³ By 1900, there were around 200,000 recorded whites living legally as spouses or land lessees in the Five Tribes—and many more squatting illegally.Footnote ¹⁴

More railroad lines were built and crude oil exploration multiplied, modifying not only the demographics of the region but also the power differential, making Native people minorities—numerically and influence-wise—in the space that was supposed to be their forever home. The railroads introduced large-scale corporate greed into Indian Territory, bringing Indian nations into contact with capitalist behemoths who refused to honor treaties and did not respect Indian property; the railroads also brought individual settlers who served as laborers and entrepreneurs who strove to serve these laborers and the populations that sprung up around the products of their exertion.Footnote ¹⁵ Even though railroads had to pay for the Indian land they built on through stock exchanges, this initial purchase meant they then had the built-in ability to also purchase the six miles on either side of the railroad track, which quickly wore away at tribal land holdings.Footnote ¹⁶

The Five Tribes went to war to defend their land and cultural institutions (which included slavery) and the developments of the postwar period demonstrated that they were right to fear incoming white encroachment. The land cessions to which the Five Tribes were forced to agree—and subsequently Oklahoma statehood—had many negative effects on Native people, including large-scale disenfranchisement for several decades; the introduction of increased white violence; and the theft of oil-rich land holdings, both through legal and illegal means.

But the battle over the degree to which the United States weakened the Five Tribes’ land ownership claims and tribal sovereignty in the nineteenth century is not yet over. On July 9, 2020, the U.S. Supreme Court announced its ruling in McGirt v. Oklahoma, a case that essentially hinged on whether a crime committed by a Creek man against a Creek man had taken place on Indian land (defined as reservations, allotments, or dependent Indian communities).Footnote ¹⁷ The court, with Associate Justice Neil Gorsuch writing for the majority, ruled that the Treaties of 1866, the IAA, and the legislation that followed it, namely the Dawes and Curtis Acts, had not actually legally dissolved the Creek Nation’s tribal holdings because the U.S. Congress, according to Gorsuch, “has not said otherwise.”Footnote ¹⁸ Still, the Five Tribes must decide how they will interpret this decision and what agreement they will come to with the state of Oklahoma and the U.S. federal government with regard to jurisdiction, taxation, and a host of other issues. What will the end result look like? Only time will tell.