Book Review: By the Fire We Carry by Rebecca Nagle – The Oxford Eagle

By Allen Boyer

In “By the Fire We Carry” Rebecca Nagle skillfully combines two stories.

One is the true crime story of a stupid, violent confrontation Saturday night on a dirt road in Oklahoma that wound its way through prisons and courtrooms until it finally reached the United States Supreme Court.

The other is a long, unfinished chapter of frontier history: the story of the five civilized tribes (Cherokee, Chickasaw, Choctaw, Muscogee and Seminole, the eastern peoples who were driven to Oklahoma) and how, against all odds – no matter how you signed a lot of land, no matter how much they were bullied and cheated – they retained their tribal identity and treaty rights.

When Patrick Murphy hacked his girlfriend’s former boyfriend to death in August 1999, no one saw that the case could make a difference. It wasn’t until years later that Murphy’s attorney raised a far-reaching issue on appeal – arguing that the state of Oklahoma had no jurisdiction to prosecute and try Murphy because both he and the man he killed belonged to the Muscogee Nation belonged and the murder took place on Muscogee land: “Indian land”.

The long shot paid off amazingly. In 2020, in Sharp vs. Murphy (besides a similar case, McGirt vs. Oklahoma), the Supreme Court ruled that the Muscogee Reservation had never been abolished by Congress. Oklahoma law did not apply to Muscogee tribal members on Muscogee land. Oklahoma’s highest criminal court extended this ownership to other tribes’ lands. Unexpectedly, seemingly overnight, most of eastern Oklahoma became “Indian Country” for law enforcement purposes: territory where the state could not prosecute Indian-on-Indian crimes.

For Nagle, this political story has personal dimensions. Their ancestors include Cherokee leaders John Ridge and Major Ridge. The Ridge family signed the dubious Treaty of New Echota and gave up the Cherokee homeland. Nagle believes they were trying to make the best deal possible, given the overwhelming strength of the whites and the hard heart of Andrew Jackson; but “distance” meant the trail of tears. Embittered survivors of this long westward trek called the Ridges traitors, carefully plotted revenge, and killed them.

One of Nagle’s great-grandfathers was a young lawyer, the son of an Irish immigrant who came to Oklahoma staking a claim during a land rush in 1889. Another great-grandfather was a small-town pharmacist whose name was added to the Cherokee tribal rolls in 1900 and who was granted tribal land – but only bare land without a farmhouse. The diverse stories of their ancestors, Nagle argues, show how white settlers and legislators redistributed land to suppress the power of tribal communities.

Half of the Oklahoma lands that the five civilized tribes had received in exchange for abandoning their ancient territories in the southeast and marching into Oklahoma were lost after the Civil War. The tribes had sided with the Confederacy and the Union government limited their authority in treaties to end the war.

Twenty years later, the tribes’ remaining land was divided into “parcels” under the Dawes Act. The purpose of the allotment was to divide the land that the tribes owned collectively into individual, individually held parcels. The tribes were outnumbered and overwhelmed.

“To harass the tribal governments, Congress took away everything it could…The Secretary of the Interior took ownership of all tribal property, including schools, courts, buildings and money. Tribal governments were forbidden from meeting except to discuss allotments.

“Squatters were allowed to incorporate their illegal cities and towns, pass laws, and even begin collecting taxes. Finally, Congress intended that the allocation could be made with or without tribal consent.”

In the end, lawyers generally believed that there was no longer a reservation in Oklahoma. The crime scene in Sharp vs. Murphy was counted as “Indian land” only because a Muscogee family still owned the mineral rights to the land beneath it.

The Supreme Court’s actions were strongly condemned by Oklahoma prosecutors. Nagle dismisses the hoopla succinctly. Reviving tribal justice does not mean criminals will go free: They cannot be tried in state court, but they can be tried in tribal or federal court. Oklahoma authorities warned that 76,000 defendants may need to be released from prison; In fact, only a few dozen convicts were able to gain their freedom. The meaning of “Indian land” still puzzles the Supreme Court.

In this outrage, Nagle hears echoes of frontier intolerance. The white politicians behind the Dawes Act claimed that tribal rule had made Indian Territory a haven “for murderers, train robbers, horse thieves, bank robbers, and the outlaw class in general.” She resents the persistent slander that Indian authority means lawlessness.

This book is deep, clearly written and extremely knowledgeable. Every lawyer dealing with Indian law should read this book. So should anyone who wants to appreciate the history of the American frontier—both what white settlers gained and what Native Americans held on to.

And this also applies to those of us who live in Lafayette County, in the solid corner of northeast Mississippi that the Chickasaw ceded, and/or in the wide swath of territory that the Choctaw gave up before they were driven out.

“By the fire we carry: The generation-long fight for justice in the homeland.” By Rebecca Nagle. Harper/HarperCollins. 336 pages. $32.

Allen Boyer grew up in Oxford (territory transferred during the Chickasaw Cession), taught law in Oklahoma, and now writes in New York City.