by Mary Kathryn Nagel
On July 9, in the case of McGirt v. Oklahoma, the US Supreme Court issued a watershed decision for Native American legal rights. The 5-4 decision acknowledged that the US government must honor its 1866 grant of nineteen million acres to the Muscogee Nation. In her 2018 play, Sovereignty, Native American lawyer and playwright Mary Kathryn Nagle dramatized many of the exact issues that McGirt v. Oklahoma addressed. Below is a scene from her play.
SARAH is a citizen of Cherokee Nation and a graduate of Yale Law School who returns home after a long absence. WATIE is her brother. He works for the Cherokee Nation police force. BEN is a Special Victims Unit police officer in present-day Oklahoma. MITCH is non-Indian lawyer living in Oklahoma and a childhood friend of Sarah and Watie.
BEN: So crazy to be standing there—you know, two sets of police, and neither one of us could do anything.
SARAH: Because of Oliphant.
BEN: An elephant?
MITCH and SARAH: Oliphant.
MITCH: Supreme Court case.
WATIE: Oh no. Two attorneys in the same room.
SARAH: In 1978 the Supreme Court said Tribes can no longer exercise criminal jurisdiction over non-Indians who come onto tribal lands and commit a crime.
BEN: That’s just wrong.
SARAH: Tell that to your United States Supreme Court.
BEN: You don’t like the court?
SARAH: I respect it.
BEN: So you’re like a Catholic that hates the Vatican.
SARAH: It’s hard to worship an institution that always decides against you.
BEN: You’ve never won a case?
SARAH: Worcester v. Georgia.
WATIE: We won a case in 1822.
WATIE: Thirty-two, excuse me.
BEN: Rooster v. Georgia?
SARAH: Yes, but pronounced “wooster.”
BEN: Indians have weird names.
WATIE: Worcester was white.
SARAH: We won that case. And we’ve lost ever since.
BEN: So you’re telling me that because of this Elephant case, I could steal your car, I could steal your yoga mat—
SARAH: I don’t do yoga.
BEN: But if you did—
SARAH: You could set my house on fire, graffiti our courthouse, kill someone, basically do whatever you want, and Cherokee Nation could never prosecute you. But, if Cherokee Nation were to actually get off its butt and implement VAWA, we could prosecute domestic violence crimes perpetrated by non-Indians.
WATIE: Va what?
SARAH: Violence Against Women Act. You don’t know about the Violence Against Women Act?
WATIE: I’m a man.
SARAH: Just six years ago, Congress reauthorized the Violence Against Women Act with a tribal jurisdiction provision in it.
WATIE: You lost me at authorized. Can I make a suggestion? Skip anything above two syllables.
BEN: VA-WA, that works.
SARAH: In VAWA, Congress restored a piece of our criminal jurisdiction. The criminal jurisdiction that Oliphant took away.
WATIE: Jur-is-dic-shun. You lost me at dick.
SARAH: You know jurisdiction.
WATIE: I know we don’t have it. Over white guys.
SARAH: And I’m telling you that VAWA restored it. A piece of it.
WATIE: Oh. Wow.
WATIE: Why didn’t you tell me that in the first place?
SARAH: I swear. Sometimes I want to hit you.
MITCH: You’re not the only one.
BEN [to SARAH]: Are you this passionate about everything in life?
MARY KATHRYN NAGLE is an enrolled citizen of the Cherokee Nation. Her play Sliver of a Full Moon has been performed at law schools across the United States, and she has received commissions from Arena Stage, the Rose Theater, Portland Center Stage, Denver Center for the Performing Arts, Yale Repertory Theatre, Round House Theatre, and the Oregon Shakespeare Festival. She served as the first executive director of the Yale Indigenous Performing Arts Program from 2015 to 2019. Nagle is also a partner at Pipestem Law, P.C., where she works to protect tribal sovereignty and the inherent right of Indian Nations to protect their women and children from domestic violence and sexual assault. She has authored numerous briefs in federal appellate courts, including the United States Supreme Court.
Sovereignty unfolds over two parallel timelines. In present-day Oklahoma, a young Cherokee lawyer, Sarah Ridge Polson, and her colleague Jim Ross defend the inherent jurisdiction of Cherokee Nation in the US Supreme Court when a non-Indian defendant challenges the Nation’s authority to prosecute non-Indian perpetrators of domestic violence. Their collaboration is juxtaposed with scenes from 1835, when Cherokee Nation was eight hundred miles to the east in the southern Appalachians. That year, Sarah’s and Jim’s ancestors, historic Cherokee rivals, were bitterly divided over a proposed treaty with the administration of Andrew Jackson, the Treaty of New Echota, which led to the nation’s removal to Oklahoma on the infamous Trail of Tears. Taking as its point of departure the story of one lawyer’s passionate defense of the rights of her people to prosecute non-natives who commit crimes on reservations, Sovereignty opens up into an expansive exploration of the circular continuity of history, human memory, and the power of human relationships.
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