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
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.
The pretended treaty made with the so-called Confederate States by the Cherokee Nation
Tribal Treaties Database (Oklahoma State University): Treaty with the Cherokee, 1866shall have all the rights of native Cherokees
Tribal Treaties Database (Oklahoma State University): Treaty with the Cherokee, 1866The United States may settle friendly Indians in any part of the Cherokee country west of 96
Tribal Treaties Database (Oklahoma State University): Treaty with the Cherokee, 1866They 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)the act of Congress must prevail as if the treaty were not an element to be considered
The 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.
- 1833
- 1835
Land kept
About 778,000 acres set aside as a reservation for the Cherokee
By Treaty of New Echota with the Cherokee, 1835
- 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.
- 1866
This treaty
Ratified by the Senate
- 1868
- 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.
- 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”
- 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”
- 1898
Law
Curtis Act
The 1898 Curtis Act abolished tribal courts in Indian Territory and ordered the Dawes Commission to allot Five Tribes land.
- 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.
- 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
- Native American Rights Fund (NARF) Native-led Litigation and legal advocacy for tribal sovereignty, treaty rights, land and resources Give on their site Website
- NDN Collective (LANDBACK Campaign) Native-led LANDBACK campaign (launched 2020; Mount Rushmore closure and return of Black Hills public lands), Indigenous… Give on their site Website
- Indian Land Tenure Foundation (ILTF) Native-led Land recovery and control by tribes and individual Indian landowners Website
- Decolonizing Wealth Project (Indigenous Earth Fund; California Tribal Land Return) Native-led Reparative philanthropy Give on their site Website
Gifts go straight to each organization; this atlas takes nothing. Listing is not endorsement: how organizations are listed.
Sources
Sources
- 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.