Catching Up to a Cherokee and Muscogee Understanding of the Government

With Rebecca Nagle

My guest today is Rebecca Nagle, an award-winning journalist and citizen of Cherokee Nation, and the author of By the Fire We Carry: The Generations-Long Fight for Justice on Native Land. Rebecca details the history of violence, dispossession, and resistance behind a monumental Supreme Court case decided in 2020. The case resulted in the restoration of tribal land, but it’s not exactly all unicorns and rainbows now. Rather, in Rebecca’s words, the victory reveals “what can happen when the U.S. government follows the law, even though it has a tendency not to.”

Rebecca is the creator and host of Crooked Media’s chart-topping podcast This Land. Her work has been featured in The Atlantic, The Washington Post, The Guardian, and Teen Vogue, among other outlets. A condensed, edited transcript of our conversation is below. You can also listen to the interview on the Skipped History podcast:

M’lady Rebecca Nagle

Ben: Can you start by giving some background on the nations central to your book?

RN: Sure. The book focuses on a Supreme Court case over Muscogee Nation's reservation. Historically, Muscogee Nation was a confederacy in the southeastern U.S. but was forcibly removed to what’s now Oklahoma in the 1830s. Today, it’s the fourth largest tribe, with a reservation in east-central Oklahoma. I also discuss Cherokee Nation, my tribe, which was also from the Southeast but a bit north of Muscogee, in Appalachia. We were removed to Oklahoma as well.

Ben: The Muscogee are also known as the Creeks, is that right?

RN: Yes. “Creek” is the English term, like “Navajo” and “Diné” or “Lakota” and “Sioux.” A lot of people just use the word Muscogee, but when you hear Creek Nation, it means the same thing.

Ben: There's something striking to me about being so disinterested in learning someone’s name, or maybe not even thinking about it, that you just name them after their surroundings. It’s like going up to someone at a cocktail party and saying, Hello, I assume your name is Martini.

RN: Ha, yeah.

Ben: You write that “the War of 1812 was a sea change” in the balance of power between Indigenous nations and the young U.S. republic. Could you talk about what you mean, and how some of this history intersects with your own family history in the book?

RN: Absolutely. We tend to overlook that in all the U.S. wars of the 1800s, from the War of 1812 to the Civil War, the U.S. was also at war with Indigenous nations. During the War of 1812, various Indigenous nations formed a military alliance under the Shawnee and Muscogee leader Tecumseh, siding with the British against the U.S. 

My family, particularly my great great great great grandfather—Major Ridge, as he’s known in English—fought on the other side of this war. At first, Cherokee leaders were very reluctant to take a side. We had allied with the British against the U.S. during the Revolutionary War and in retaliation, about half of all Cherokee towns were burned down. This time around, Major Ridge eventually persuaded other Cherokee leaders to join the fight on the side of the U.S.

The Cherokee soon played a pivotal role in a decisive battle that turned into one of the largest massacres of Native Americans in U.S. history, called the Battle of Horseshoe Bend. Tecumseh was killed in battle. Afterward, most tribes shifted from warfare to diplomacy, trying to use U.S. law and courts to fight for Indigenous rights.

Ben: There seem to be many impossible decisions faced by figures like Major Ridge. Can you talk about the next one detailed in the book?

RN: Sure. By the 1830s, the U.S. adopted a policy to remove Indigenous nations from their lands. Southern states wanted the land and worked with President Andrew Jackson to create a policy that, if tribes refused to leave, they’d make life unbearable. Georgia had a special guard that would arrest and even torture Cherokee citizens and passed laws to control what Cherokees could do on their own land. 

Cherokee leaders turned to diplomacy and Congress. They even went to the Supreme Court and actually won a historic victory saying Georgia had to stop. My ancestor, Major Ridge’s son, named John Ridge, went to D.C. to meet with Jackson to implore him to enforce the ruling. Jackson refused to his face and the harassment continued.

So the Ridges came to a place where they felt like there was nothing else that Cherokee Nation could do—that if they stayed and tried to survive on our lands, we’d be absorbed into the U.S. and basically be erased. Or that if we tried to fight, we’d be annihilated. Major Ridge and John Ridge started to see removal as the only way Cherokee Nation could survive. They signed a treaty without the nation’s authorization, ceding our homeland for land out West. What followed was the Trail of Tears, resulting in the deaths of a quarter of the Cherokee population. 

Many Cherokees blamed the Ridges for this, and in 1839, they were assassinated. In the book, I grapple with this moment in time, and I ultimately came away thinking that the Ridges did the wrong thing for the right reasons.

Ben: Just to remember who’s really to blame here, as you write, “the truth is that no tactic could stop the U.S. policy of ethnic cleansing.”

RN: Absolutely. And during the Civil War, there were other civil wars within Cherokee and Muskogee nations, with some people being against slavery and some people being for it. Like the U.S., we were divided over the institution of slavery.

The end result was that we were invaded by both the Union and the Confederacy and received little protection from either. After the war, the “Five Tribes”—Muscogee, Cherokee, Chickasaw, Choctaw, and Seminole—signed what are generally called the Treaties of 1866. One of the biggest concessions was land—about half the land we had from the removal treaties. The institution of slavery also formally ended within our tribes.

And those treaties still bear on the present moment in some big ways. There are ongoing battles and court cases over the rights of what we call “freedpeople,” formerly enslaved people within our tribes. We still use this sort of Reconstruction-era language.

Ben: In the book, you make moments from long ago feel immediate, both because many similar dynamics are still in place and because events from the 1860s are still relevant in legal proceedings—and also I suppose because of the persistent use of Reconstruction language... m’lady.

RN: Haha, yeah. 

Ben: You mentioned SCOTUS. Can you talk more about the Supreme Court’s inconsistent relationship with Native territory and jurisdiction?

RN: When you look at federal Indian law—the Supreme Court rulings and federal laws dating back to the 1790s—there’s so much contradiction. An Ojibwe legal scholar I talked to, Maggie Blackhawk, describes it as a battlefield. What you see in these laws are the battles our ancestors fought: their victories, losses, and the unimaginable compromises they were forced to make.

So much of this legal history informs the Supreme Court case I follow in the book. The case actually started with a murder back in 1999 in rural Oklahoma. A Muscogee citizen, Patrick Murphy, killed another Muscogee citizen, George Jacobs, on the side of a dirt road. It was a brutal crime, and Patrick got the death penalty. 

Years into Murphy’s sentence, his federal public defender started investigating his case, digging into every detail, and she found a strange inconsistency between the actual location of the murder and where Oklahoma investigators had recorded it. It got her thinking about jurisdiction. After some digging, her team developed a broader argument: they believed the Muscogee Nation reservation where the murder took place had never been officially dissolved by Congress.

That question—whether Muscogee Nation still had a reservation—went all the way to the Supreme Court.

Ben: Later in the book, you talk about how this case isn’t just a feel-good story of justice, but that it’s a rare example of what’s possible. Can you elaborate on that?

RN: Right, the case is called McGirt v. Oklahoma, and just to give context, McGirt resulted in the largest restoration of tribal land in U.S. history. The Supreme Court ruled that Muscogee Nation’s reservation still existed, and based on that decision, eight other reservations in Oklahoma were also upheld. Altogether, it means 19 million acres—about half of Oklahoma, including much of Tulsa—was legally recognized as tribal land. That’s larger than West Virginia and nine other U.S. states.

But the irony is that the Supreme Court didn’t overturn anything, didn’t strike anything down. All it did was follow the law. But still, that was radical because in so many other cases, if tribes have something a state or non-Native population wants—be it gold, oil, land, or power—courts often bend and break rules to satisfy settlers’ demands, even when the law clearly protects the tribe.

I think it would be easy to say, “Everything is great now.” But that’s not the full story. What McGirt and my book really demonstrate is the rarity of justice when it comes to Indigenous nations. The decision wasn’t an overhaul—it just shows what can happen when the U.S. government follows the law, even though it has a tendency not to. The concern growing among many Americans about the Supreme Court is a reality Indigenous nations have been living with for a long time.