Mary Kathryn Nagle: How Castro-Huerta 'flips federal Indian law on its head'
'I fight to restore the sovereignty the Supreme Court took away.'
by Mary Kathryn Nagle
As a child, my grandmother taught me to revere the United States Supreme Court. Her eyes would beam with pride as she pointed to the photos of my grandfathers that hung on her wall and explained that in 1832, the executive and legislative branches of the United States government sought to extinguish us. But, the judicial branch recognized our right to exist.
In Worcester v. Georgia, a case that my great-great-great grandfather John Ridge worked on alongside Cherokee Nation Chief John Ross, the United States Supreme Court declared that Georgia could not exercise criminal jurisdiction over non-Indians located within Cherokee Nation’s borders. The Supreme Court’s declaration of tribal sovereignty threatened nothing less than President Andrew Jackson’s 1830 Indian Removal Act and his plan for genocidal forced removal. And it affirmed our inherent right to exist.
Worcester v. Georgia is the reason I went to law school. It’s the reason I’ve always believed in the legitimacy of the Supreme Court as an institution that does not bend to the political pressures of the day, but instead, applies the law, plain and simple.
All of that changed this past month. The Supreme Court’s decision in Oklahoma v. Castro-Huerta is not an application of the law. It is an outcome-determinative decision designed to satisfy the governor of Oklahoma’s multi-million dollar campaign to undermine the court’s decision from two years ago, in McGirt.
Justice Gorsuch begins his dissent with the case my grandfather worked on. And he concludes that there is no reason Worcester should not control here. Just as the court rejected Andrew Jackson’s attempt to usurp the sovereignty of Cherokee Nation in 1832, the court should have, in this case, denied Gov. Kevin Stitt’s attempt to commandeer the sovereignty of tribal nations today in Oklahoma. If Oklahoma wants to exercise jurisdiction over tribal lands, their solution is — as it has always has been — in the halls of Congress.
But the majority, authored by Justice Kavanaugh, concludes that states, like Oklahoma, have jurisdiction over the lands of tribal nations until or unless Congress limits that jurisdiction. This, as many Indian law scholars have pointed out, defies the plain language in the Constitution and flips federal Indian law on its head. To reach this decision, Justice Kavanaugh attempts to eviscerate the victory my grandfather and my nation won in the court just less than 200 years ago, claiming that “Worcester rested on a mistaken understanding of the relationship between Indian country and the States.”
Nothing in Chief Justice Marshall’s decision was mistaken. At the time that the court issued its decision in Worcester, the question of which sovereign could exercise criminal jurisdiction on tribal lands, for Native women, had life and death implications. In 1825, the governor of Georgia instructed the Georgia Militia to rape Cherokee women, believing that if the militia raped enough of us, we would voluntarily agree to leave our homes and move west of the Mississippi. His plan did not work. My great-great-great-great grandfather, Major Ridge, was the speaker of our nation’s tribal council at that time, and in response, he worked with our council to pass a law that made it a crime for any person to rape a woman on Cherokee lands. Long before many states criminalized rape within their borders, Cherokee Nation prosecuted anyone, Indian or non-Indian, who raped a woman on Cherokee lands.
In 1978, the United States Supreme Court concluded, in Oliphant v. Suquamish Indian Tribe, that tribal nations could no longer exercise jurisdiction over non-Indians who come onto tribal lands and commit crimes. And as a result, today, Native women and children are more likely to be raped, assaulted, and murdered than any population in the United States. The Department of Justice reports that the majority of these crimes are committed by non-Indians. Because of Oliphant, our nations can no longer protect our own women and children in their own homes.
As Native women, we know there is a connection between the sovereignty of our nations and the safety of our bodies. There always has been. That is why the governor of Georgia instructed his militia to rape us. That is why the soldiers raped Cherokee women on the Trail of Tears. And it is why, as a lawyer today, I fight to restore the sovereignty the Supreme Court took away.
The court had the opportunity in Castro-Huerta to right a wrong. But instead of restoring the tribal jurisdiction that the court took away in Oliphant, the court gave it to the state. Instead of upholding Chief Justice Marshall’s decision in Worcester, Justice Kavanaugh injudiciously tried to undermine it.
Just as Andrew Jackson claimed the forced, genocidal removal of my nation, the Cherokee Nation, was for our own safety and welfare, Gov. Stitt has claimed that his state’s multi-million dollar campaign against tribal sovereignty is to benefit me and my fellow Native women and children. But just as Andrew Jackson failed to reach his ultimate goal, Gov. Stitt will fail to reach his. Tribal nations, and their citizens, are still here. And no amount of money, lawyers, or public relations campaigns can eliminate us and our right to protect our own citizens in their homes. Gov. Stitt — we will see you in Congress. And this time, the truth will prevail.
Worcester was not a misunderstanding. It was, and continues to be, an example of what the Supreme Court can be, if and when it decides to look past prejudice and simply apply the law.
Mary Kathryn Nagle, an enrolled citizen of the Cherokee Nation, granted Indigenous Wire permission to reprint this op-ed, which first appeared on ICT. She is an Indian affairs lawyer whose work focuses on the restoration of tribal sovereignty and the inherent right of tribal nations to protect their women and children from domestic violence and sexual assault. In January 2018, her play Sovereignty — which tells the story of Cherokee Nation’s victory in Worcester v. Georgia — premiered at the Arena Stage in Washington, D.C. She serves as outside counsel for the National Indigenous Women’s Resource Center (NIWRC) and co-authored, along with Sarah Deer and Shoney Blake, the NIWRC’s amicus brief in Oklahoma v. Castro-Huerta. She represents numerous families of Murdered and Missing Indigenous Women and Girls, including Kaysera Stops Pretty Places’ family who have brought a public campaign demanding an investigation into her murder.
Indigenous Wire is a Native-owned, reader-supported publication. To receive new posts and support our work, consider becoming a free or paid subscriber.