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Rebecca Nagle, "By the Fire We Carry: The Generations-Long Fight for Justice on Native Land" (Harper, 2024)
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Steve Houseman
Welcome back to New Books in the American West, a channel on the New Books Network of podcasts. I'm Steve Houseman. I'm an assistant professor of history at Appalachian State University in Boone, North Carolina. And I'm your host for today's interview and for this episode, I'm speaking with Rebecca Nagle. Rebecca is an award winning journalist and writer and podcaster. She's a citizen of the Cherokee Nation and her writing on topics including federal Indian law and tribal sovereignty has been published widely, including the Guardian and the Washington Post, and in Indian Country Today. And among her many accolades is a nomination for a Peabody Award and the Women's Media Center Exceptional Journalism Award. All of which is to say that we're very excited to have her here on the show to discuss her latest book, by the Fire. We the generations long fight for justice on Native Land, which was published by HarperCollins last year in 2024 and is going to be out in paperback next month in October of 2025. Welcome to the New Books Network. Rebecca. Good to have you.
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Rebecca Nagle
Yeah, great to be here.
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Steve Houseman
Let's just start, as we always do on this show, by just hearing a little bit about you. What is your background? And I'm especially interested in how you became interested in writing about history and in journalism and just in writing in general.
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Rebecca Nagle
Yeah, yeah, that's a great question. So I. I, actually, before I was a journalist, I. In my 20s, I was doing community organizing and sort of arts advocacy. And in that capacity, sometimes I would write opinion pieces here or there. And there were a couple pieces that I wrote that had a really big impact. Actually, one of the first things I wrote that went kind of far and wide was about Elizabeth Warren's false claims of being Cherokee. And it helped shift the conversation. And then I became more interested in writing, and so I started pitching more. And, you know, the rest is kind of history. The specific topic for the book, the McGirt case, you know, as it was decided by the 10th Circuit, which is a court that is just like, one step below the Supreme Court. I was living in Oklahoma, and the case was about whether or not Muskogee Nation still had a reservation. But it was likely that whatever the outcome was, it would apply to my tribe as well, Cherokee Nation. And I remember when I found out about the case, I just had this visceral reaction of thinking that the sacrifice that my ancestors had made for Cherokee land here in Oklahoma could be, you know, could the land that they died for that hadn't been recognized as Cherokee land by the state in over a hundred years, could then be recognized. And I had this visceral sense of justice in my. In my bones and in my blood, and became really obsessed with the case. And then I've been covering it ever since. So, yeah, you know, I kind of stumbled into writing a little bit as a second career, although it was something that I had been dabbling in before and. Yeah, just fell in love with it. Yeah. Really like the creative space and also really like the research aspect of it and also digging into history. So, yeah, thank you for that excellent starting question.
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Steve Houseman
Yeah, of course. Why don't we jump into the book here? And this is a story that you tell in by the Fire We Carry that has a lot of different starting points. And indeed, in the book itself, you jump back and forth in chronology quite a bit. But let's start the story where you begin in the book, in 1999, August 1999, to be specific. So can you tell us the story of George Jacobs and Patrick Murphy and what happened in August 1999 to kind of get this story started?
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Rebecca Nagle
Yeah. So, you know, it was a hot summer day. It was Patrick Murphy's last day as a free man. And Patrick Murphy was in a relationship with. With his then long term girlfriend. They'd been living together for several years and her ex was George Jacobs. And Patrick Murphy was extremely jealous. You know, he had other jealous behavior. You know, he would get mad at her if she saw her talking to someone else at work when they worked in the same place. And so George Jacobs and Patrick Murphy, their cars passed each other on a rural dirt road outside of a small town called Vernon, Oklahoma. Been down to that road several times. And, you know, I mean, it's just a spot between some cow pastures and some trees and. And Patrick swerved around, stopped the car. There were two other people in the car with Patrick, and they pulled George Jacobs out of his car and beat him up and then murdered him. Patrick was picked up the next morning by police. And the real sort of instigation for the case is that he was tried and sentenced to death. And it was in the course of his death penalty appeals that this new argument about the reservation status of his tribe came up. And that's how the case got all the way to the Supreme Court.
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Steve Houseman
Gotcha. Well, let's back up a little bit and go back to the roots of the story. Like I said at the outset, you know, this is a story with lots of different starting points. So that is maybe the most proximate inciting event. But of course, this story goes back even further. So I'm going to ask a big question, the kind of question that you could end. People have written whole books about, but maybe we can try to give the shortest possible answer to an impossibly large question. But what is the deeper history here? What is the history of the Muscogee Nation and the Cherokee Nation and their history with the United States? And you mentioned before that you're connected to the story in some personal ways as well. What's this kind of deeper backstory here?
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Rebecca Nagle
Yeah, so where our tribes are located and modern day Oklahoma is not our original homelands. And so both Muskogee Nation and my tribe, Cherokee Nation, were originally in what is now the southeastern part of the United States. So like Alabama, Georgia, North Carolina, Tennessee area. And in the 1830s, Southern states really wanted that land, you know, to expand slavery and the cotton economy. And so they came up with this plan where our indigenous nations were not agreeing to go. We didn't want to abandon the grave of our ancestors and the land of our creation. And so Southern states got together with Andrew Jackson, and they decided that they would basically just terrorize the tribes until we agreed to move. And so a lot, you know, a lot happens. There was was ultimately a Supreme Court case that said this harassment was illegal, that Andrew Jackson then ignored and defied. There was a constitutional crisis. There was a bill that went through Congress. But basically, you know, Georgia was doing things like holding a land lottery and giving away Cherokee land that was still ours according to treaty. And so even our. Our principal chief at the time came home and found white people in his house. And so Cherokees and Muskogees were basically run out of their houses and consistently terrorized by settlers. And so it happened differently for each tribe. But my ancestors were named Major Ridge and John Ridge, and they for a long time fought against removal. Major Ridge even assassinated another chief who had illegally ceded Cherokee land. And so they had done, you know, they had argued in front of lawmakers, they had gone on speaking tours. They had done all of this stuff to resist the policy of removal, and then eventually got to a place where they thought that it was inevitable. And they worried that if Cherokee Nation stayed in our homelands, that basically we wouldn't survive. You know, the escalation of violence was such that they were worried that we would just get absorbed into the United States and that, you know, individual people might still live, but Cherokees as a distinct nation, would not survive. And so they advocated that we would, that we should move west. And against the will of the Cherokee people and against the recognized government of Cherokee Nation, they signed a treaty that was our removal treaty. And what followed that treaty was the Trail of Tears, where an estimated quarter of the Cherokee population died. And so it's a really heavy history. It's a really complicated history. And in the book, I spend a lot of time going into their decision to do that and how they could have come to that decision and what the consequences were. And I think what I really wanted the reader to feel, you know, almost two centuries later, when people are fighting for this, our new reservations in Oklahoma, for people to understand how much our tribes had lost and sacrificed to have those reservations today and what it would mean for them to be lost again. And so the case as it was moving towards the Supreme Court, a lot of tribal citizens had a very visceral and Powerful reaction to it. And I wanted the reader to understand where that came from. And, of course, it comes from history.
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Steve Houseman
Yeah. So we're talking about events that happened in the 1830s, and at the same time, a murder that happens at the end of the 20th century, in 1999. What's the kind of connection between the two? How do these two stories relate to each other across the decades and the centuries?
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Rebecca Nagle
Yeah, I mean, I think our history always informs our present, I think, more than we realize. And so, I mean, there's the literal connection. Right. Where when my ancestors signed the Treaty of New Echota, the land that is promised in that treaty is the foundation of the Cherokee Nation reservation today. And that was, you know, along with the reservation of Muscogee Nation and the reservation of three other tribes, you know, was part of what was at stake in the case. And so there's that literal connection of the legal line you can draw from our removal in the 1830s to the establishment of our reservations in Oklahoma. And then I think there's also just the way that history repeats itself. Right. And we see a lot of the same mechanisms being used in the 1830s, whether it's lying about indigenous nations and what's best for us, the greed of how people want our land. We saw a lot of those same tactics come up in the McGirt case and in the wake of the McGirt case. And so I wanted people to see. See those patterns and see how history repeats itself.
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Steve Houseman
Yeah. This is a really powerful book in the way that it does exactly what you're saying, that it shows how, you know, even things that happened almost 200 years ago, now that they're not. Not dead and gone, they're not really in the past, that they reverberate in really strong and complicated ways right up through today. And the book does a really good job of demonstrating that.
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Rebecca Nagle
Yeah.
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Steve Houseman
So let's bring it back up here to the early 21st century. And another strength of the book, I'll say briefly, is how this is a legal history in part. And I could not be more of a layperson when it comes to legal history and legal studies. And you do a good job of walking someone like me through the steps of how a case like this develops and through the characters and the people that make that happen. So I would ask you about that. How does the case that would eventually become McGirt Develop after the inciting events in 1999, and who are some of the principal actors and the people that made the story happen in developing the argument for this court case?
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Rebecca Nagle
Yeah. That's a great question. Well, the first lawyer who sort of enters. Enters the scene and changes things is a federal public defender named Lisa McCallmont. So Patrick Murphy, like I said, after he murdered George Jacobs, was sentenced to death. And that sentence and conviction came from the state of Oklahoma. He sat on death row for about four or five years, and he had appealed his. His. His death conviction and death sentence and lost. And so the last thing that happens when you're on death row, one of the last things, is that your case moves from the state public defender to the federal public defender, and they're there to try and see if there's anything that those state lawyers missed. And so Lisa McCallumont really kind of started from the beginning and investigated everything really thoroughly. And. And one of the things that she found was it was this really interesting turn of events. She actually. I'll just tell the story because I. When I found it out, I was, like, so fascinated. But she's going to interview the police officer, who's actually a tribal police officer with the Muskogee Creek Light Horse, about the case. He actually was the one who found the murder weapon. And they're, you know, getting ready to leave his office in Okmulgee. And they mentioned that they're driving down to the crime scene, and he's like, oh, show me where you're going. And they pull out a map, and they point to a spot on this rural. Rural dirt road. And he says, that's the wrong spot. That's. That's not where the murder happened. It's down here. And so they're driving down this rural dirt road, and they drive past the spot that the state police say the crime happened. And then they arrive at the place where this other police officer said it happened. And there's a cross, and it's a memorial for George Jacobs, the victim of the murder. And that location discrepancy gets Lisa McCalmont and her team thinking about jurisdiction. So, you know, if you're a prosecutor in Philadelphia, you can't prosecute a crime that happened in New York, right? So every. Every prosecutor has a little area that they can prosecute crimes in. And the way tribal jurisdiction works is that on a reservation, if a crime is committed by someone who is Native American, the state doesn't have jurisdiction. That jurisdiction either goes to the federal government or to the tribe. And so their team. It actually was like a mistake. It was just kind of. It was just an error. But the team thought maybe Oklahoma was trying to hide something. About the other location. And so they started digging into it. They hired another lawyer, they did all this research. And what they came across was actually not what they were initially suspecting, but they came across was this argument that actually, according to the law, Muskogee Nation still had a reservation. And just to put this in perspective of how radical this was, Oklahoma became a State in 1907. And Central since that time, the state has never recognized the reservation of Muskogee Nation. And so we're talking about a century of time where everyone, you know, not the tribe, like everyone in the state, has acted like this reservation no longer exists. And now you're defending a man on death row, and you're going to say, actually, it's a reservation. And so Lisa filed what's called a federal habeas this petition in federal court. And then that's the case that wound its way up to the Supreme Court. And basically how the case stopped being about, you know, whether or not Patrick Murphy should be executed for the murder of George Jacobs and started being about whether or not Muskogee Nation still had a reservation.
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Steve Houseman
It's an. It's an amazing story. And so, I mean, simple. Next question. What happens next? Once the case reaches the Supreme Court, what is the next step? I mean, both in the courtroom and in the decision that followed, what's the course of events that led to the high court decision here?
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Rebecca Nagle
Yeah, that's a great question. So to back up, the main question is behind whether or not Muskogee Nation still has a reservation. The question is, did Congress get rid of it? So, like, Oklahoma can't come in and say, well, this tribe doesn't have a reservation. We're going to not recognize it. That's not how reservations work. They're sort of the domain of the federal government, and only Congress can get rid of a reservation. And so the real question is, during this time, when Congress was creating the state of Oklahoma, did it also get rid of the reservations? And when you go through, you know, the early 1900s were a bad chapter of history for our tribes, right? They. A lot of things were taken from us, and our tribal sovereignty was diminished to sort of pave the way for white settlement in the state of Oklahoma. But in all of the things that Congress took from our tribes at that time, it actually didn't take our reservations. And so by the time the case gets to the Supreme Court, the real question is whether or not the Supreme Court is going to follow the law. Right. And so a strict sort of reading of the law, just reading the Plain text, it's clear that the tribe, Muskogee Nation, should win. But Oklahoma was coming up with all of these sort of side arguments that, you know, if you uphold the reservation, there will be chaos. You know, Congress didn't put this in writing, but they were doing all this other stuff. So it's clearly, it's what they intended. So instead of reading the plain text, we want you to read behind the line Supreme Court. And so by the time it gets to the high court, you know, that's basically the question. Will the Supreme Court follow the law or will it kind of get a little creative and make things up? And so the case was actually argued in front of the Supreme Court twice. There was sort of a surprise twist where they actually took up a second case, which is why the Supreme Court case that everyone talks about is called McGirt and not Murphy. And so it took a couple years and a couple arguments, but then finally, In July of 2020, the Supreme Court handed down its decision.
- [22:22]
Steve Houseman
I have one follow up question that it just occurred to me to ask. You know, this case, it emerges from the Murphy case and of course changes and becomes all these, about all these other issues. But what happens to Patrick Murphy? What's the end of his story here?
- [22:40]
Rebecca Nagle
Yeah, so Patrick Murphy was retried in federal court and is in federal detention, the last time I checked in Texas. So he was, he was transferred from the jurisdiction of state court of state detention to federal detention. And then he had a new trial. But the federal system, you actually can't. If you're native and you commit your crime on your reservation, the tribe has say the tribe has to consent to the federal death penalty. And so Muscogee Nation does not. Actually, of all of the 574 tribes in the United States, there's only one that allows the federal death penalty on their land. And so Patrick was spared the death penalty basically by the case being transferred.
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Steve Houseman
So let's talk about McGirt then. And it's been about five years since the decision. So pretty recent, but enough time to have a little bit of distance to maybe begin to understand the implications. What has changed both in, in Oklahoma and even nationwide after McGirt. And what hasn't changed? Or is it too soon still to really tell?
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Rebecca Nagle
Yeah, that's a great question. So, you know, In July of 2020, the Supreme Court handed down their decision and they ruled that Muskogee Nation still has a reservation. And it was this, you know, amazing victory. I was crying. Everybody was crying. It's a very emotional day. And what that meant practically on the ground was that Muskogee Nation had a reservation that day. And then the other reservations that everyone sort of assumed that the decision would apply to were upheld in state courts following McGirt and subsequent decisions. So those were the reservations of Cherokee Nation, Seminole Nation, Choctaw Nation, and Chickasaw Nation. And there are also some tribes in northeastern Oklahoma that have similar histories to us. And those reservations are also being litigated, and some of them have also been upheld. And so when you look at a map of Oklahoma, basically the eastern half, you know, the state had claimed were not reservations for over 100 years. And now that half is reservation land. If that sounds incredibly disruptive to people who do not know how reservations function. So thanks to a whole other set of laws and court decisions, the jurisdiction that tribes have on reservations over people who are not Native is really limited. So we only have the right to prosecute crimes if the. The perpetrator is not Native over, like, very specific crimes that often are about, like, protecting people against domestic violence. And we also have really limited civil jurisdiction, which is like the right to, you know, do things like family law, permits, regular environmental regulations, things like that, taxes. So those things are. Are very limited over non Natives. So the biggest shift was really who's prosecuting crimes if the crime is committed by a Native person. And so there was a moment that there was a scramble. You know, our police systems and our courts within our tribes, we had to beef up. There were a bunch of cases that had been moving through state courts that needed to be transferred to federal court or to tribal court. I get into kind of how that worked in the book. And so, you know, it wasn't a perfect transition, but for the most part, it was successful. But we have a governor who did not want it to be successful. And so there was actually. It's still happening, if you can believe it, five years later, but there was actually a really big effort on the behalf on the side of OKLAHOMA to undermine McGurr and to undermine the reservation holdings. And so that, unfortunately, has been ongoing and is something that we're still dealing with.
- [27:11]
Steve Houseman
Well, that's actually what I wanted to talk a little bit about next, because you have a whole chapter in the book called the Backlash, I believe is the name of the chapter. And, you know, you were mentioning a second ago that among a lot of Native people, this was, of course, a moment of celebration, and people were crying and hugging and celebrating this decision. But the reactions among non Native people were. I mean, I guess we can say it was a little more complicated. And part of that might be because of a lack of understanding or because of misinformation. But in terms of, you know, individual reactions and media reactions and even legal reactions, how did people respond to this, especially outside the Native community?
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Rebecca Nagle
Yeah, that's a good question. I mean, I think there was a lot of fear and misunderstanding. And I think it's really important to say that. I think, like, the average person in Oklahoma was, like, not that concerned about it. There was actually some interesting public polling where, you know, most people in Oklahoma thought that the state should just work with tribes to implement it, which was the opposite of what our state leadership was doing. But I think when you think about who really fought the decision, it's a handful of towns and jurisdictions. It's a sheriff here, a DA there, and then it's really the governor. And so I think it came down to people not wanting to cede even just like a tiny little sliver of power to the tribes. And so our current governor, his name is Kevin Stitt, he still at it. So, I mean, he organized a commission of people to recommend basically abolishing the reservations by statute. He submitted petitions to the Supreme Court asking them to undo their decision over 50 times. He is currently in a fight with Tulsa because Tulsa, which is the largest city in the reservation, has. Has said that it's going to cooperate with the tribes. And so now Stitt is directing his anger at Tulsa. And so, I mean, I think the easiest way to describe Stitt's behavior is almost like a temper tantrum. You know, like he is a child on a playground that, like, lost his toy and he has not gotten over it. And so. And whether or not that's how tribes are working on the ground with Oklahoma officials really depends on the officials. I think think some in a lot of jurisdictions, there's a lot of cooperation, especially when it comes to crime. So, like, one thing that's in place is it's called cross deputization. So, so that police can respond to crimes no matter who has jurisdiction. And so we'll cross deputize Oklahoma police so they can, you know, arrest folks on our reservation and vice versa, where we can show up and respond to a crime, where maybe the perpetrators not Native, but we can still just, you know, make things safe. Right. And so that's on the ground. It's. The reality is different sometimes than the headlines. So there's. There's been a really big backlash. And I. I think too, after the attempt to just wholesale overturn the decision didn't work. Oklahoma's taking this piecemeal decision where they're trying to attack it at every angle and make the legal status of the reservations mean less, if that makes sense. So they're attacking, you know, how it affects taxes. They're trying to still issue traffic tickets. You know, there's also just been a lot of, like, non compliance and things like that, which is unfortunate, but not new. You know, I think tribes were used to having to, like, fight for every inch of our sovereignty. Yeah. So I think for me as a tribal citizen, I think what's unfortunate is that we've had to spend a lot of time and energy fighting the state of Oklahoma even after the big fight was over. And that, I think, hasn't allowed us the space to really think about the reservations more expansively and to think about, you know, how can this generational moment build our tribal sovereignty for future generations? I think we haven't had the space collectively to think about that because we've been so much on the defensive.
- [31:51]
Steve Houseman
Yeah, it's a really good example, I mean, a sad and frustrating example, but a worthwhile example of how despite what the broader public might think about something, a few people with their hands close to or on the levers of power can really kind of shift, shape things and shape the narrative and shape outcomes as well.
- [32:10]
Rebecca Nagle
Yeah. Yeah, for sure.
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Steve Houseman
So you have a quote in your. What I thought was a pretty fantastic epilogue to the book that I want to read and I'm curious about. You say all the court did in this quote, all the court did was follow the law. But still, that was radical. And that quote kind of stuck with me. And I'm wondering what you meant when you said that. And related. You know, I won't ask you to make predictions here on the podcast, but what might McGirt mean for the future among Native people and in the law in general?
- [32:42]
Rebecca Nagle
Yeah, that's a great question. So before McGirt, there was this pattern in the judiciary where courts would say, well, yes, you know, this is what the treaty says, or this is what the law says. But that treaty was so long ago and it would be so disruptive to uphold it and follow the law now. So here is this principle that we pulled out of the sky that we're going to say is the reason that we can't follow the law, when the real reason is just that we don't want to upset the expectations of non Native people. And so over and over again, you see the. You see the courts be more responsive to the demands and the needs of non Native people than to the actual law itself. And so there have been similar cases where the law was pretty clearly on the tribe side and the tribe lost. There's plenty of examples of that. And so I think because it was such a big area, because so many non Native people live on our reservations, there was a lot of worry that that would happen here. But instead, the court followed the law. And, you know, the McGurt, the McGirt case at the time, in 2020, you know, it got a lot of press, it got a lot of attention. A lot of people were surprised by it. And it's ironic in a way when you think about it, because, you know, literally the court decision, it doesn't. It didn't change anything. It wasn't overturning anything. It wasn't setting new precedent. It was just following the Supreme Court's existing rules in a case where the application of those rules were pretty clear. But still, it was. It was a shock to the system because more often than not, when those rules don't have the outcome that non Native people want, you know, the law doesn't matter. And so that's. You know, I think one of the kind of struggles and themes of the book is whether or not people will follow the law when it comes to the treaty rights of tribes.
- [35:03]
Steve Houseman
Yeah, yeah, yeah. So as we begin to wrap up here a bit, I always like to ask my guests to think about their book from a different perspective. So you wrote this book.
- [35:15]
Rebecca Nagle
Book.
- [35:16]
Steve Houseman
You know it inside and out, and all the arguments and the points and the stories that you're telling here. But I want you to imagine for a second that you're someone that has read this book and maybe you. You put it back on the shelf and you step away for a few months or maybe a couple years. What would you hope that this person, this reader would think back and remember, or take away from the book as they think back and remember it a few years on down the line?
- [35:37]
Rebecca Nagle
Oh, that's a great question. I mean, I think what I hope would stay with them is. Is the impression of generations of Native people who have fought for their land and their sovereignty. And I think oftentimes, even in our own histories and our own stories, we can be secondary or supporting characters. And those stories of our resistance, I feel like, are not told enough. Yeah. So I think that's what I would hope would stay. Would stay with the reader.
- [36:09]
Steve Houseman
Yeah, I think that message comes across pretty loud and clear in the book. I think that's a good one. And Then for my last question, I talk to a lot of scholars and a lot of writers. And if I know scholars and writers, you always have. We always have all myself and that. A few projects on the table or a few plates spinning at once. So I'm curious, Rebecca, what are you working on now that this book has been out for about a year? Is there any kind of future projects or ideas that you'd like to talk about or plug a little bit?
- [36:38]
Rebecca Nagle
Yeah, totally. Yeah. I mean, it's in development, but I'm working on a new podcast that's around, that's collaborative with some other Native scholars and writers that's around the 250 year anniversary of the signing of the Declaration of Independence. And then sort of looking at how Native people have been written out of that story and written out of the American story writ large. And that's not just a problem for Native people, it's a problem for our country because we don't, we don't actually know where we came from because we don't know that part of the story.
- [37:18]
Steve Houseman
That sounds great. I can't wait to hear that podcast. That sounds fantastic. A really, really important topic. And you know, as someone that teaches undergraduates, I think that a lot of people, as you're saying, do not know that story at all.
- [37:28]
Rebecca Nagle
Yeah, yeah, for sure.
- [37:31]
Steve Houseman
Rebecca Nagle is an award winning journalist, writer and podcaster and her new book is by the Fire we the Generations Long Fight for Justice on Native Land, which was published by HarperCollins last year in 2024 and will be out in paperback next month on October 28, 2025. Thank you so much for speaking with me today, Rebecca.
- [37:52]
Rebecca Nagle
Thank you so much for.