After the Supreme Court decision this summer that affirmed that land in eastern Oklahoma remains tribal land of the five tribes who walked the Trail of Tears, I knew I wanted to know more about this. Somehow I landed on a podcast by Rebecca Nagle that is hosted by the Crooked Media group. There are 10 episodes that last about 30 minutes each. This series began in 2019 when the Supreme Court was expected to decide the case.
I concluded this podcast has all the elements of a book I would want to write about: a murder at the center of the story, a history that we need to know, dramatic Supreme Court decisions, and the key element, an outstanding storyteller who has a part in the story.
Rebecca Nagle, a member of the Cherokee Nation, one of those five tribes, begins the story with the 1999 murder of one Muscogee Creek man by another. The state of Oklahoma convicted him of murder. His public defender then discovered that the killing took place about a mile from where the murder site was originally believed to be. They argued that the actual murder site was Creek territory, and thus Oklahoma did not have jurisdiction, and the accused would have to be retried in tribal or federal court.
Though we may know little about the treaties and laws relating to Indians in this country, most of us are aware of the removal of tribes from the southeastern US in 1830 to a territory west of the Mississippi that became Oklahoma. We know that removal meant a forced march during the winter that killed many and that Congress had agreed to a treaty creating a permanent reservation. In the late 19th century Congress changed the arrangement to allot the land to individuals rather than tribal ownership. By that time the white man wanted this land, so that action, called “allotment,” was taken as the first step to take the land. The method of allotment made the intent clear: different and widely separated allotments of land were assigned to individuals. If someone squatted on your 100 acres that was 150 miles from where you lived, they could eventually claim that land. And there were many such schemes. As a result, much of the land in the original reservation is now owned by whites. The fact that so much of the land is owned by non-Indians is one of Oklahoma’s arguments that the reservation does not exist.
A decision was expected in the 2019 term (by the end of June), but the case was held over for the next term. Justice Gorsuch had recused himself because he was involved in the case at the lower court. The next surprise was that in the 2019-2020 term the Court decided to hear a different case (McGirt v. Oklahoma) that had the identical issue: a crime committed by a Native American on reservation land with Oklahoma claiming the reservation no longer exists. This summer Gorsuch voted with the liberal justices affirming that the reservation exists because Congress has never voted to end the treaty. He wrote the opinion which includes this stirring statement: “Congress has since broken more than a few promises to the Tribe. Nevertheless, the Creek Reservation persists today.”
Rebecca Nagle’s personal involvement is that her ancestors, Major Ridge and his son John, were the Cherokees who agreed to the treaty that resulted in the Trail of Tears. Though they didn’t have any good choices and the treaty did have some protections, they were killed by Cherokees angered by the loss of life. They remain controversial figures.
The full implications of this decision are unclear. In the narrow sense, it means that crimes committed by Native Americans on reservation land can only be adjudicated in tribal or federal courts. If Oklahoma’s claim that the reservation does not exist for that legal sense had been upheld, other protections for the reservation might have been under greater threat.
I cannot overstate how glad I was to have listened to this podcast. It is so important for all of us to know this brilliantly told story.
Nagle, Rebecca, host, “This Land,” Crooked Media, June 3, 2019-July 23, 2020, https://crooked.com/podcast-series/this-land/