By the Fire We Carry

Rebecca Nagle, a citizen of Cherokee Nation and investigative journalist, weaves together two intertwined narratives: the centuries-long dispossession of Indigenous land in what is now Oklahoma, and a modern legal battle that began with a murder and ended at the United States Supreme Court. The book traces how the case of a man on Oklahoma's death row produced the largest restoration of tribal land in US history.

In the prologue, Nagle establishes her personal stake. She is a descendant of Major Ridge and John Ridge, Cherokee leaders who signed a controversial removal treaty in the 1830s, and she grew up hearing stories of ancestors who sacrificed their lives for Cherokee sovereignty. In 2017, she discovered a court case arguing that Oklahoma lacked jurisdiction to execute a Muscogee citizen because his crime occurred on the Muscogee reservation, which Oklahoma claimed no longer existed. The outcome would likely determine the reservation status of her own tribe.

The book opens in 1999 with the murder of George Jacobs, a Muscogee Vietnam veteran, in rural McIntosh County, Oklahoma. Patrick Murphy, a thirty-year-old Muscogee man who had been drinking all day, encountered George on Vernon Road and, along with his cousin Billy Jack Long and Kevin King, a fourteen-year-old from the same close-knit community, attacked him. George was stabbed, castrated, and left to bleed to death in a ditch. Murphy was convicted of first-degree murder and sentenced to death after a four-day trial in which his overextended public defender spent less than an hour preparing with him. Murphy maintains his innocence, claiming the two younger men committed the killing.

Nagle reaches back centuries to explain how Muscogee and Cherokee Nations came to occupy eastern Oklahoma. She recounts how Major Ridge rose from refugee child to political strongman, helping form Cherokee Nation's centralized government and outlawing unauthorized land sales on penalty of death. She traces the parallel history of the Muscogee Confederacy, including a civil war between assimilated and traditional Muscogee towns that widened into war with the United States. Andrew Jackson rose to power through military campaigns against Indigenous nations and, as president, pushed the Indian Removal Act through Congress in 1830 by five votes. Cherokee Nation fought the policy in the courts, winning a landmark victory in Worcester v. Georgia (1832), which declared states had no authority over Cherokee land. Jackson refused to enforce the decision.

Facing the reality that legal victory meant nothing without enforcement, John Ridge and his cousin Elias Boudinot signed the Treaty of New Echota in 1835, ceding all Cherokee land east of the Mississippi. The treaty was unauthorized, opposed by nearly 90 percent of Cherokee citizens, and ratified by the Senate by a single vote. When the deadline expired, 7,000 US soldiers rounded up over 15,000 Cherokees and forced them west on the Trail of Tears; an estimated 4,000 died. Shortly after arrival in Oklahoma, the Ridges and Boudinot were assassinated under the very law Major Ridge had helped pass. Muscogee, Choctaw, Chickasaw, and Seminole Nations endured similarly devastating removals, with each Muscogee town keeping its council fire alive through the journey.

The promise of permanent land was broken through allotment. Beginning in the late 1800s, Congress divided communally held tribal land into individual plots, opening the door for settlers, speculators, and oil companies to acquire Native land through sale, fraud, and theft. Tribes lost nearly two-thirds of their land base. Nagle follows the Naharkey family as a case study: Moser Naharkey, a Muscogee farmer, became wealthy when oil was struck on his allotment, then died under unexplained circumstances. His daughter Millie was abducted, sexually assaulted, and swindled out of her inheritance. Declared legally incompetent, Millie spent the rest of her life needing a guardian's permission for every expenditure and died in 1996 without a headstone. Despite this devastation, the treaty boundaries of the Five Tribes (Cherokee, Muscogee, Choctaw, Chickasaw, and Seminole Nations) were never formally dissolved by Congress.

The book returns to Murphy's case in 2004, when federal public defender Lisa McCalmont discovered that the Oklahoma State Bureau of Investigation had recorded the wrong location for the murder. The actual crime scene sat over a mile from where investigators placed it, and a title examination revealed that a Muscogee family still held mineral rights to the land. Under the legal concept of "Indian country," which defines areas where only tribal and federal authorities can prosecute Native defendants, Oklahoma may have had no jurisdiction. Because Muscogee Nation does not allow the federal death penalty, proving this could save Murphy's life. Lisa's team developed a bolder argument: the entire three-million-acre Muscogee treaty territory remained a reservation. Oklahoma courts rejected the claim, and the case stalled for a decade. Lisa died by suicide before seeing it resolved.

In 2016, the Tenth Circuit Court of Appeals agreed to hear the case, and Muscogee Nation's Principal Chief James Floyd decided the tribe must join. The tribe's attorneys applied the Supreme Court's Solem test, a framework for determining whether a reservation still exists, and argued that its first step was clear: Congress never passed a law disestablishing the reservation. In 2017, the Tenth Circuit agreed in a 120-page opinion.

Oklahoma appealed to the Supreme Court, which heard arguments in Carpenter v. Murphy in November 2018. Oklahoma's lawyer argued that Congress took so much from Muscogee Nation during allotment that the reservation effectively ceased to exist. Muscogee Nation's attorney Riyaz Kanji countered that using historical wrongs to justify further dispossession would leave no tribe safe. With Justice Neil Gorsuch recused, the Court ordered reargument. Murphy's legal team suspected the justices were seeking a case that would allow Gorsuch to participate. That case arrived as McGirt v. Oklahoma. Jimcy McGirt, a Seminole Nation citizen and Muscogee descendant serving life for sexually abusing a child, had navigated the appeals process from prison without a lawyer.

On July 9, 2020, the Supreme Court ruled 5 to 4 that the Muscogee reservation was never disestablished. Justice Gorsuch wrote the majority opinion, joined by the four liberal justices including Justice Ruth Bader Ginsburg: "On the far end of the Trail of Tears was a promise. Because Congress has not said otherwise, we hold the government to its word" (177). "Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law," Gorsuch wrote (181). In the months that followed, Oklahoma courts affirmed the reservations of all Five Tribes, which together cover 19 million acres, roughly half of Oklahoma.

Murphy left death row but was not freed; a federal jury convicted him of second-degree murder and sentenced him to life in prison. Meanwhile, the decision triggered backlash. Governor Kevin Stitt, himself a Cherokee Nation citizen, claimed McGirt had unleashed criminal chaos, citing seventy-six thousand past convictions potentially overturned. Nagle finds the number unsupported: only sixty-eight inmates were released in the eighteen months after McGirt. Tribal nations absorbed the caseload, and for most of the 1.9 million people on reservation lands, life continued unchanged. The regulatory disruptions the oil and gas industry warned about never materialized.

Oklahoma nonetheless persuaded the reconstituted Supreme Court, now including Justice Amy Coney Barrett in place of the late Ginsburg, to hear Oklahoma v. Castro-Huerta (2022). In a 5-to-4 decision, Justice Brett Kavanaugh held that states can prosecute non-Natives who commit crimes against Natives on tribal land. In dissent, Gorsuch called the majority reasoning ahistorical and detached from legal authority.

In the epilogue, Nagle visits the unmarked site where the largest concentration camp for Cherokee roundups once stood. She reflects that McGirt was historic not because the Court broke new ground, but because it simply followed existing law. The lesson, she concludes, is not that justice always prevails, but that "although justice for Indigenous nations is rare, in our democracy, it is possible" (215).