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SoutheastTreaty

Reconstruction Treaty with the Cherokee, 1866

The 1866 Cherokee treaty voided the Confederate treaty, gave freedmen Cherokee rights, and let the United States settle other tribes on Cherokee land.

Signed
July 19, 1866
Senate
Ratified July 27, 1866
Land given up
about 1.3 million acres
The land in this treaty’s record. Open on the map

What happened

What happened

On July 19, 1866, in Washington, the United States and the Cherokee Nation signed a new treaty. Article 1 declared void the "pretended treaty" the Cherokee Nation made with the "so-called Confederate States" on October 7, 1861, which the national council repudiated on February 18, 1863. Article 2 declared amnesty for crimes a Cherokee had committed against another Cherokee or a U.S. citizen before July 4, 1866.

Article 9 records that the Nation had abolished slavery in February 1863. It says freedmen, and free colored persons living in the country, and their descendants, "shall have all the rights of native Cherokees." Slave owners were to receive no pay for the slaves freed.

Article 16 let the United States settle friendly Indians in the Cherokee country west of the 96th meridian, up to 160 acres for each person. The Cherokee Nation would be paid a price agreed by the parties or fixed by the President, and its jurisdiction over each district would end forever once it was sold and occupied. Article 17 ceded, in trust to the United States, the Kansas land sold to the Cherokees under the 1835 treaty. It was to be appraised at not less than an average of $1.25 an acre and sold.

In The Cherokee Tobacco (December Term 1870), the Supreme Court held that a federal internal revenue law on tobacco applied in the Cherokee Nation despite the treaty. It said treaties with Indian nations "have no higher sanctity" than treaties with foreign nations, which a later act of Congress can override, so that the act "must prevail as if the treaty were not an element to be considered."

Summarized with AI assistance from 5 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error

What the sources say, and how this was checked

Well supported by the sources below.

  1. The pretended treaty made with the so-called Confederate States by the Cherokee NationTribal Treaties Database (Oklahoma State University): Treaty with the Cherokee, 1866
  2. shall have all the rights of native CherokeesTribal Treaties Database (Oklahoma State University): Treaty with the Cherokee, 1866
  3. The United States may settle friendly Indians in any part of the Cherokee country west of 96Tribal Treaties Database (Oklahoma State University): Treaty with the Cherokee, 1866
  4. They have no higher sanctity; and no greater inviolability or immunity from legislative invasion can be claimed for them.The Cherokee Tobacco, 78 U.S. 616 (1870)
  5. the act of Congress must prevail as if the treaty were not an element to be consideredThe Cherokee Tobacco, 78 U.S. 616 (1870)

Research notes. The treaty text does not describe a 'Cherokee Outlet' cession; Articles 16 and 17 are described as written. Only some of the treaty's articles are described here. No Cherokee Nation source is cited, so the Nation's own account is not described.

What the treaty did to the land

About 1.3 million acres given up. Each shape is a numbered area in the federal government’s 1899 record of land cessions.

  • named in the recordabout 7.9 million acres

    Land of the Cherokee in Oklahoma, ceded 1893 (area 489)

    The Cherokee Outlet: guaranteed to the Cherokee in 1833, left with them in 1866 with a United States right to settle friendly Indians there, and ceded in an 1891 agreement confirmed in 1893.

  • earlier terms confirmedabout 4.4 million acres

    Reservation of the Cherokee in Oklahoma (area 492)

    Guaranteed to the Cherokee in Indian Territory by the 1833 treaty and kept by them as their home in the 1866 treaty; the 1899 federal record lists no cession of this area.

  • ceded to the United Statesabout 778,000 acres

    Land of the Cherokee in Kansas, ceded 1866 (area 490)

    The Cherokee Neutral Land in Kansas: granted to the Cherokee in the 1835 New Echota treaty, given up in 1866 to be sold on their behalf, with an 1868 treaty reaffirming its sale to James F. Joy.

  • ceded to the United Statesabout 538,000 acres

    Land of the Cherokee in Kansas, ceded 1866 (area 491)

    The Cherokee Strip in Kansas, given up by the Cherokee in 1866 to be sold on their behalf; an 1877 act provided for selling the unsold part at a lower price.

What happened next

Everything the record holds about this land and this treaty, in order: what earlier agreements said, what this one did, and what the United States, the courts and the nations did afterwards.

  1. 1833

    Land kept

    About 12 million acres set aside as a reservation for the Cherokee

    The 1899 record: “The U. S. agree to possess the Cherokees, and to guarantee it to them forever, of 7,000,000 acres of land”

    area 489 area 492

  2. 1835

    Land kept

    About 778,000 acres set aside as a reservation for the Cherokee

    By Treaty of New Echota with the Cherokee, 1835

    area 490

  3. 1866

    This treaty

    About 7.9 million acres named in the record. Earlier terms confirmed for the land of the Cherokee. About 1.3 million acres ceded to the United States by the Cherokee

    The 1866 Cherokee treaty voided the Confederate treaty, gave freedmen Cherokee rights, and let the United States settle other tribes on Cherokee land.

  4. 1866

    This treaty

    Ratified by the Senate

  5. 1868

    Land record

    Earlier terms confirmed for the land of the Cherokee

    By Cherokee at Washington, DC (1868)

    area 490

  6. 1871

    In court

    The Cherokee Tobacco

    A later act of Congress can override an earlier treaty, so federal excise taxes applied in Cherokee territory despite the 1866 treaty.

  7. 1877

    Land record

    About 538,000 acres named in the record

    The 1899 record: “Provides for sale at reduced price of unsold portion of "Cherokee strip" in Kansas”

    area 491

  8. 1893

    Land lost

    About 7.9 million acres ceded to the United States by the Cherokee

    The 1899 record: “Confirms agreement of Dec. 19, 1891, by which these Indians cede to the U. S. all their title and interest in the following lands”

    area 489

  9. 1898

    Law

    Curtis Act

    The 1898 Curtis Act abolished tribal courts in Indian Territory and ordered the Dawes Commission to allot Five Tribes land.

  10. 1898

    Promise broken

    Curtis Act (1898) and Oklahoma statehood (1907): Five Tribes governments dismantled and lands allotted

    The 1898 Curtis Act let allotment of Five Tribes land proceed without tribal consent and weakened their governments.

  11. 2020

    In court

    McGirt v. Oklahoma

    Land promised to the Creek Nation by treaty remains a reservation, so Oklahoma could not prosecute a tribal member there.

The law behind it

The legal ideas behind the decisions, and related records without a date. Court cases and laws with a date are in what happened next, above.

  • Legal doctrine

    canons of construction

    Courts read ambiguous treaties in favor of tribes and as the Indians would have understood them, rules the Supreme Court has repeated for more than a century.

  • Legal doctrine

    criminal jurisdiction

    Who may prosecute a crime in Indian country depends on who the offender and victim are and where it happened.

  • Legal doctrine

    diminishment

    Only Congress can shrink a reservation, and courts require a clear statement; Solem, Hagen and Parker show how that test works.

  • Legal doctrine

    disestablishment

    Disestablishment means Congress ended a reservation entirely; courts require clear intent from Congress, and McGirt (2020) held the Creek Reservation was never disestablished.

  • Legal doctrine

    indian country

    Federal law defines 'Indian country' as reservations, dependent Indian communities and Indian allotments; the definition decides which government's laws apply.

  • Legal doctrine

    abrogation

    Abrogation is Congress overriding a treaty: Lone Wolf (1903) allowed it, but modern courts require clear evidence Congress chose to break the treaty.

  • Legal doctrine

    last in time

    A later federal statute prevails over an earlier inconsistent treaty, a last-in-time rule the Supreme Court applied to Native nations in The Cherokee Tobacco.

  • Legal doctrine

    plenary power

    Congress claims 'plenary' power over Indian affairs, upheld since Kagama and Lone Wolf; Justice Thomas has questioned it, and the Brackeen Court said it has borders.

Who is doing the work today

The nations connected to this treaty come first, then groups returning land and defending treaty rights. Support goes directly to them.

Who is doing the work

This history belongs to living nations. Start with them:

Native legal and land defense, nationally

Gifts go straight to each organization; this atlas takes nothing. Listing is not endorsement: how organizations are listed.

Sources

Sources

  1. digitreaties.org/treaties/treaty/179015384reference work
Research notes

Stat. page per Stat. vol. 14 OCR index; Kappler page. Ratification detail: 1866-07-27 (Senate consent (with amendments); read from the Stat. margin by V2).

Shapes are approximate and are not legal descriptions of land, title or jurisdiction.