In the summer of 2017, I was scrolling through Facebook when I saw a post from Muscogee legal scholar Sarah Deer. It was about a court case I had not yet heard of. A man on Oklahoma’s death row was 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.
Before Muscogee Nation came to present-day Oklahoma, the tribe’s territory spanned what is now Florida, Georgia, and Alabama. In the 1830s, the US military rounded Muscogee people up at gunpoint and forced them into exile halfway across the continent. In a letter to Muscogee leaders, 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. 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. And their decision would result in the largest restoration of tribal land in US history.
After seeing that Facebook post, I became obsessed with the case, called McGirt v Oklahoma. I would spend years writing news articles, creating a podcast and ultimately writing a book: By The Fire We Carry: The Generations-Long Fight for Justice on Native Land. I knew whatever the outcome, the case would likely determine the reservation status of my tribe, Cherokee Nation, too. The book weaves together the surprising story behind the Supreme Court case and the history that illuminates why it matters. Our ancestors sacrificed and survived too much for the treaty promises they fought for to simply be brushed aside. But history is complicated. Our tribes not only endured colonization, dispossession, and genocide, but we chose to practice chattel slavery. The book covers not only the harms our tribes endured, but also the harms we committed and are responsible for today.
Starting with George Washington, US presidents promised Cherokees that if they could live more like white people—raise livestock, farm, wear cotton clothes, and adopt Christianity—they could remain on their lands. In other words, if they could assimilate to white society, they could have rights. For Cherokees, the pressure to assimilate was also practical. There was not enough wild game to support subsistence hunting, so more Cherokees kept livestock. After tides of death from disease, intermarrying with white people helped Cherokees rebuild their population. Even our traditional, decentralized government had to change after US officials exploited it by coercing individual chiefs to sell off pieces of Cherokee land. So, over and over again, Cherokees adapted.
Cherokee leaders sent their children to white schools, learned English, changed the way they dressed and even formed a new central government, with a new written constitution. But as Cherokee Nation remade itself under the influence and pressures of colonization, it adopted aspects of white supremacy. Article 3, section 4 of the new constitution denied Black Cherokees citizenship. Cherokees first had contact with the European concept of chattel slavery through the Indigenous slave trade, in which Cherokees were kidnapped and enslaved by the Spanish and British. In the early 1700s, a third of the enslaved population in South Carolina was Indigenous. Since time immemorial, Cherokee identity was based on one’s maternal clan; if your mother was Cherokee, you were too. In Cherokee society, “kinship, not freedom” was the opposite of slavery, writes historian Tiya Miles. “In the Cherokee understanding, to be kin meant being human, and to be human meant being free.”
By the late 1700s individual Cherokees enslaved people of African descent, but Black Cherokees who had a clan through adoption or birth still had full citizenship rights. In the 1820s, all that changed. When my great-great-great grandfather John Ridge and his cousin Elias Boudinot married white women, they petitioned the National Council to allow children with a Cherokee father but white mother (their children) to be citizens. The Council obliged. Around that time, the Council also passed laws excluding mixed-Black Cherokees from citizenship—even if their mother was Cherokee. Four other tribes—Muscogee, Chickasaw, Choctaw, and Seminole Nations—also adopted chattel slavery from the US South. Partially for this reason, our nations came to be called the loaded moniker “the Five Civilized Tribes.”
While Elias appears to have opposed slavery (by reprinting abolitionist texts in the Cherokee paper he edited) both John Ridge and his father Major Ridge enslaved people of African descent and supported anti-Black policies within Cherokee Nation. In an 1826 letter, John Ridge wrote that intermarried whites were accepted because it helped the tribe with its “march of civilization,” but the “few instances of African mixture with Cherokee blood” were viewed as a “misfortune & disgrace.” Growing up, this part of our family history wasn’t talked about. After learning it, I spent years not wanting to claim my ancestors, and then years not knowing how.
In the fledgling United States, wealth was power. And for Indigenous leaders at the time, power was survival. But wealth, of course, is also about greed. Because of the people they enslaved, the Ridges could afford fine things like china plates, silks, extensive fruit orchards, and even a white-painted plantation-style home.
Cherokees’ traditional form of self-governance was not perfect, but it was a society structured to prioritize equality and maintain balance. When we left behind the clan system, we lost this. The inequality born of this time—the lower status of women, the introduction of class, the gulf between traditional and acculturated Cherokees, and the adoption of anti-Black racism—is something we have yet to overcome.
When the US Civil War broke out in 1861, the Confederacy courted an alliance with the Five Tribes. Eventually all five tribes–Muscogee, Cherokee, Chickasaw, Choctaw and Seminole Nations–sided with the Confederacy. But the people were deeply divided. In Cherokee Nation, traditionalists opposed to slavery and the influence of white society fought for the Union. Another faction fought for the South. The tribe’s conflicting position meant it was invaded by both the Union and Confederacy and offered little protection from either. Similar divisions broke out within Muscogee Nation, with those loyal to the Union fleeing to Kansas.
Four years after Cherokee Nation signed a treaty of allegiance to the Confederacy, General Robert E. Lee surrendered and the American Civil War was over. When leaders from the Five Tribes met with federal officials to negotiate peace, they were startled by the US government’s demands. As punishment for siding with the Confederacy, the United States wanted almost half the tribes’ land. Tribal leaders tried to protest, but on the losing end of the war there was little they could do. These revised boundaries—as described in the 1866 treaties—are what the Five Tribes consider their reservations today and for Muscogee Nation are what the Supreme Court–154 years later–upheld in McGirt v Oklahoma. The treaties also formally ended slavery in all five tribes, and in Cherokee, Seminole, and Muscogee Nations granted full citizenship to formerly enslaved people.
A year before the McGirt decision came out, Rhonda Grayson got a letter in the mail. It was from the citizenship board of Muscogee Nation. The letter informed Rhonda she was not eligible for citizenship in the tribe because she was not Muscogee “by blood.” Her application was rejected. At the turn of the 19th Century the land held communally by Muscogee Nation was divided up and assigned to individual tribal citizens. To assign land to each tribal citizen, federal officials needed a list. Those officials segregated the rolls they made, placing formerly enslaved people and their descendants on separate “Freedmen” rolls. Rhonda’s great-grandmother was placed on the Creek Freedmen roll. When Muscogee Nation ratified a new constitution in 1979, it excluded descendants of freedpeople. If the Dawes Commission hadn’t placed their ancestor on the “by blood” roll, people like Rhonda couldn’t enroll.
To Rhonda, the timing betrayed a gross hypocrisy; how could Muscogee Nation demand the United States uphold its end of the treaty, but not uphold theirs? “Creek freedmen were part of the tribe before there was even a Creek Nation,” Rhonda told me. “They traveled on the Trail of Tears.” With a fellow freedpeople descendant, Rhonda sued the citizenship board in Muscogee Nation court, arguing the board’s decision violated the treaty of 1866.
Muscogee Nation was not alone. Under our modern governments, all five tribes have excluded or disenfranchised the descendants of freedpeople. In September of 2001, Marilyn Vann applied for citizenship in Cherokee Nation. Her father, an original allottee, was placed on the Cherokee Freedmen roll. Marilyn had always known her family was Cherokee—both by adoption and blood—so she assumed she would be able to enroll without a problem. “I was very shocked to get back this rejection letter,” she told me. At first under Cherokee Nation’s 1976 constitution, anyone who descended from an original allottee could enroll, but starting in the 1980s, the tribe disenrolled freedpeople descendants, also claiming tribal citizenship was reserved for Cherokees “by blood.”
Marilyn sat with her rejection letter and thought about it. “I’m looking around and I see historical[ly] anybody that has gotten anything done they have had to be organized,” she remembers thinking. “And generally they have had to use the courts.” Marilyn founded an advocacy organization called the Descendants of Freedmen of the Five Tribes. And, she filed a lawsuit. Suing first the tribe and then officials of Cherokee Nation, Marilyn alleged they illegally disenfranchised her.
In 2017, a federal court ruled on Marilyn’s case. Marilyn had no idea when the ruling would come out and was sitting in the beauty salon when her phone started blowing up. “I said well we must have won the case,” she remembers. The federal court ruled—based on the treaty of 1866—descendants of Cherokee freedpeople were guaranteed citizenship in the tribe. After decades of legal battles, Cherokee Nation dropped the fight and started enrolling descendants of freedpeople. Marilyn was already planning to travel to the Cherokee capital for the tribe’s annual holiday weekend. Before her trip she gathered up all the paperwork she needed to enroll her grandchildren. “They won’t remember a time when they’re not members of the tribe,” she thought. “All nations that have enslaved people have had to take some responsibility for them,” Marilyn reflected. “The Cherokee Nation has to do that just like the United States.”
Over four years after she got that rejection letter, the District Court of Muscogee Nation ruled on Rhonda Grayson’s case. She won. “For more than 100 years,” the decision read, Muscogee Nation followed the 1866 treaty and extended citizenship to freedpeople and their descendants. On the heels of McGirt, it would be “disingenuous,” the judge wrote, for the tribe to fight for the United States to follow the treaty of 1866, but not follow it themselves. Two weeks before the district court ruling, Principal Chief David Hill was elected to a second term. Publicly, he has stated the case presents a complicated issue, but his administration has to follow the constitution. His attorney general vowed to appeal the district court decision, stating under their constitution “non-Creek individuals” cannot be citizens. As of this writing, the case is still pending. Today descendants of freedpeople have full citizenship rights in Cherokee Nation, can enroll in Seminole Nation with limited access to services, and are still denied citizenship in Chickasaw, Choctaw, and Muscogee Nations.
If Indigenous nations are truly sovereign, then we are responsible for our mistakes. Like any other government, we are responsible for the harm we have caused. We cannot hold the United States accountable for the wrongs of history committed against us, but not take account for the wrong of chattel slavery. The people we enslaved did not choose to become Cherokee or Muscogee—we made that choice for them. They and their families endured the hardships of the Trail of Tears and slavery, allotment and segregation. On the long path of repair, citizenship is only the first step.
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.
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