Indeed, what will the end result look like? If the history of the period under discussion provides us any clues, the answers may not look remarkably different on the surface than other jurisdictional areas. In the wake of the legislative changes that led up to and immediately followed the 1871 IAA, the Cherokees implemented social welfare policies that had already been undergoing modifications since before removal. The Cherokee Nation as well as the other four tribes, continued to assert their jurisdictional authority over Five Tribes citizens and uphold inter-tribal agreements within the Indian territory.Footnote ¹ In essence, they continued to act as the rightful guardians to their “citizen-wards” in defiance of outside actors who wished to undermine the sovereign and time immemorial responsibility to care for and protect clan kin and community.

What this looked like in practice for Cherokees were social welfare institutions recognizable to non-Native Americans: educational institutions, orphan and mental health asylums, and a prison.Footnote ² The latter institution has particular salience in the wake of the McGirt decision. The Cherokee Nation’s prison built in the early 1870s and opened in 1875 performed symbolic and practical purposes. It demonstrated to outsiders that the Cherokee Nation was a sovereign nation capable of policing its community and maintaining safety and security within its borders. It jailed, imprisoned, and executed people for major and minor crimes parallel to those committed in the states (murder, assault, theft, public drunkenness, and illegal whiskey sales).Footnote ³

The Cherokee Nation’s public institutions, on the whole, offered far more culturally responsive systems than those citizens would have faced in the larger United States. Native citizens could rely on having access to translators during all phases of criminal proceedings regardless of their tribal affiliation. The Cherokee Nation regularly advocated on behalf of citizens dragged before the federal courts.Footnote ⁴ And unlike its southern counterparts, the Cherokee Nation, despite its slaveholding past, never used its prison system to reinstate the more brutal aspects of forced labor as other penitentiaries did, nor did it disproportionately fill its prison with formerly enslaved people.Footnote ⁵

But as Roberts points out, the Cherokee Nation’s lack of policing authority over non-Indians left all of Indian Territory vulnerable to the depredations of the hordes of intruders who moved into Indian Territory following the 1862 Homestead Act and the opening of the Unassigned Lands. For crimes committed by non-Indians, Native nations relied on the understaffed, underfunded, and often biased actions of the federal marshals and courts based at Ft. Smith, Arkansas, until 1896 and then in Muskogee, Ardmore, and McAlester until 1907.

And yet, the future is not the past. The Five Tribes can be guided by the best practices of the past and the present to imagine a better future for everyone. What might, to modify a term used by Chief of the Shawnee Ben Barnes recently, the “Cherokeeization” of Indian Country criminal law look like in the wake of McGirt?Footnote ⁶ Will it follow the Eastern Band of Cherokee Indians’ recent moves and design a community-centered domestic violence court or build a jail?Footnote ⁷ Will it be more just, culturally responsive, and restorative or will it simply replicate the criminal justice systems in Oklahoma that is only now working to bring down what was in 2016 one of the highest incarceration rates in the world?Footnote ⁸ And if it does replicate those very same systems, will non-Indians recognize that living sovereignty, regardless of the sovereign, is imperfect and constantly in need of critique and care?