Justice for Indigenous Nations Is Rare. McGirt v. Oklahoma Proves It’s Possible.

Below is an excerpt from Rebecca Nagle’s book, “By the Fire We Carry,” published by HarperCollins on September 10, 2024. Continuing to explore a history she revealed in the podcast “This Land,” Nagle writes on the U.S. government’s forcible removal of 80,000 Indigenous peoples living east of the Mississippi and a landmark Supreme Court case nearly 200 years later that upheld the sovereignty of tribal lands.

When I finally reached the cornfield, the sky was a bluish haze. The field had already been harvested. In swarms, blackbirds ate the broken pieces left on the ground. A spring-fed creek carved out the lowest place. From there, the ground rose east to a grassy knoll and then again east to a distant ridge lined with trees. There was little color in the hard Tennessee dirt and faded stalks before my feet. It looked mournful, as if the earth knew what history it held. When Cherokees were rounded up and forced into concentration camps, this was the largest one. They stayed close to the spring for water. There is no marker.

Whether or not the United States committed genocide against Indigenous peoples is still debated among historians. In 1948, the crime was defined by the United Nations as the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group” by one or more acts of physical violence. The Cherokee word for our removal is ᏗᎨᏥᎢᎢᎸᏍᏔᏅᎢ. It literally means “when they drove us.” It’s the same word we use to talk about herding animals. 

To prepare, the army split logs, drove them into the ground lengthwise, and built 25 open-air stockades. On May 23, 1838, 7,000 U.S. soldiers and militiamen went out into the hills and valleys of Cherokee Nation and rounded the people up. At gunpoint, the militia drove a woman in labor from a remote valley town to the main concentration camp. Even after she gave birth, they would not let her rest. Finally, on a riverbank near the stockade, she lay down and died. Over 15,000 people were herded into the camps. In the squalor, violent conditions, they died in droves. When Cherokees marched west that winter, death followed. People walked over 1,000 miles; their footsteps left a trench in the earth. Although the exact number is unknown, one missionary estimated 4,000 people died between the camps and removal — a quarter of the total population. 

In the 1830s, the United States decided all Indigenous nations living within its borders needed to leave. Those that refused were forced. Choctaws were herded through waist-deep swamps; parents held their children over their heads so the kids wouldn’t drown. Seminoles who tried to hide were hunted to the ends of the earth. The U.S. army charged Chickasaw Nation the cost of daily rations for deportees who had already died. Muscogee citizens walked through eight inches of snow (many without shoes because the company in charge of their exile lost their winter clothing). Because there was no time for proper burials, the dead were hastily covered in brush and later eaten by animals. Loss of life at this scale is compounded by the children who were never born. After removal, the population of Muscogee Nation steadily declined for two decades.

On my reporting trip to the South, I also visited the public parks and monuments that were clearly labeled and dedicated to this history of our removal. They were no less jarring than the cornfield. The visitors seemed most interested in the architecture of the early-1800s buildings. They walked their dogs. It is a heavy history to truly hold — a weight our public and our government has never lifted. 

In 2005, a man on Oklahoma’s death row appealed his conviction arguing the state didn’t have jurisdiction to execute him because he was Native and the murder happened on the Muscogee reservation. Oklahoma argued that reservation no longer existed. 

When the U.S. military rounded Muscogee people up at gunpoint and forced them into exile halfway across the continent, Andrew Jackson promised their new home would remain theirs for “as long as the grass grows or the water runs, in peace and plenty.” That promise was not kept. In violation of their treaties, Oklahoma was created on top of Muscogee land. Since it became a state, Oklahoma acted as if all reservations within its borders were abolished. For over a century, the Muscogee reservation was denied. And while that might sound like a reservation no longer exists, that’s not what the law says. The case would ultimately go all the way to the Supreme Court. Although the case was about the Muscogee reservation, I knew whatever the outcome, it would likely determine the reservation status of my tribe too.

On July 9, 2020, the Supreme Court made its decision in McGirt v Oklahoma. “On the far end of the Trail of Tears was a promise,” the opinion began. “Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. … Today, we are asked whether the land these treaties promised remains an Indian reservation for the purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”

After it was denied for over a century, the court ruled Muscogee Nation still had a reservation. Subsequently, eight other reservations in Oklahoma were upheld, including my own Cherokee Nation. Taken together, our reservations cover 19 million acres — about half of the land in Oklahoma and most of the city of Tulsa. It is an area larger than West Virginia and nine other U.S. states. The McGirt decision resulted in the largest restoration of Indigenous land in US history. 

The historic status of the McGirt decision is ironic when you understand what happened legally. The Supreme Court didn’t overturn anything, strike anything down, or change its own precedent. All the court did was follow the law. But still, that was radical.

When it comes to tribal sovereignty, the U.S. government is spineless. Most often when states or non-Native people want something that belongs to a tribe — whether it’s gold, oil, land, or power — they get it. Even when the law clearly protects the tribe. Sometimes our government simply looked the other way. Other times settlers wanted so much that our government remade the law to fit their demands. Greed — not justice — has governed more of our history than we are willing to admit. 

Indigenous nations have been governing ourselves since before this country was founded — since before it was even an idea. As the United States was built around us, we shaped it. Since the founding, tribal leaders, Indigenous intellectuals, Native diplomats, warriors, lawyers, and advocates carved out a space in American law through which our inherent sovereignty was recognized. Over the generations, we continue to leverage the legal foothold our ancestors created. 

Federal Indian law today is not all good or all bad — rather it is the totality of our history. Embedded in American law are the victories and defeats of our ancestors, and the unimaginable compromises they were forced to make. The legal terrain with which we are left is tricky: The protections Indigenous nations have under U.S. law are not enough, yet we have to constantly fight for those protections to remain and be followed. We demand the U.S. government fulfill its legal obligations to us, knowing it often will not. Native nations don’t have a constitutional amendment or Supreme Court decision that ended our legal subordination. What we are left with is a government that still contains both impulses: The impulse to uphold the inherent and legally recognized sovereignty of Indigenous nations. And the impulse to railroad tribes because it can.

The lesson of McGirt is not that when the law is on our side and we fight hard, justice prevails. The lesson is that although justice for Indigenous nations is rare, in our democracy, it is possible.

In our self-conception, America is a beacon of democracy for the rest of the world. Even when our founding sins are recognized, we like to believe things have gotten better. The story we tell ourselves is one of progress. In reality, our government committed genocide. It has never reformed itself or changed its laws to prevent such atrocities from happening again. 

So now, when our government wants to ban Muslims from entering our country, suspend the international rules of war to fight terror, detain enemy combatants indefinitely, put migrants in detention camps, and separate families at the border, it uses principles of federal Indian law to do so. As scholar Maggie Blackhawk has pointed out, the legal doctrines the U.S. created to take Indigenous land still govern how the U.S. treats those living at the margins of our empire. Native history is often treated like a tragic, distant chapter of the American story, and the legal terrain it created like a siloed backwater of American law. But it is foundational.

The Founding Fathers wanted a democracy that, unlike the king of England, would derive its power from “the consent of the governed.” But they also wanted an empire. And so they built both: a democracy that at its center gave every citizen a voice and a vote, and an empire that, as it constantly expanded, controlled the lives and the lands of people who had no say. While over the centuries who was included in that center of democracy changed, the edge of empire never went away. From Indigenous nations, to Guam and Puerto Rico, to migrants detained at our border, there have always been people who lived under the raw power of our government but without the liberties and privileges of our Constitution. Our inheritance as American citizens is a democracy that is often wildly antidemocratic — a government that rules by both consent and by conquest.

When I left the cornfield, I drove north. The side of the road was punctuated with signs letting me know it had once been a route on the Trail of Tears. The small town a few miles north of the internment camp was the army’s base of operations. I got out there and walked a small circle of residential blocks. One of the streets was named after the secretary of war who oversaw the deportation, another after the army general in charge. For a moment, I watched a family decorate their home for Christmas. They pulled green garlands and red and silver balls out of plastic bins. I felt overwhelmed by the weight of it all. And so alone in that feeling.

From the book “By the Fire We Carry” by Rebecca Nagle. Copyright © 2024 by Rebecca Nagle. Excerpted courtesy of Harper, an imprint of HarperCollins Publishers.