Mary Annette Pember
ICT
Mary Kathryn Nagle lives and works in a state of gentle domestic chaos.
She is seated at her dining room table in the Washington, D.C. area with her laptop on silent as she preps for an important client call. Dogs bark, a workman rushes in bumping his head on a decorative Halloween skull, complaining he’s been stung by a bee. Nagle rushes to find medication for the sting then settles in for an interview with ICT wedged between pauses in the client Zoom call. Her 21-month-old daughter Vnokeckv pops her head under Nagle’s shirt for a quick sip of breast milk before darting into the next room.
For the briefest moment a look of tension flashes over Nagle’s face as she fields yet another phone call. The call is from her husband Jonedev Chaudhuri. A talented attorney in his own right, Chaudhuri serves as ambassador for his tribe, the Muscogee (Creek) Nation, and is former chairman of the National Indian Gaming Commission.
The call, however, doesn’t concern momentous issues of tribal sovereignty or litigation but rather an important domestic choice. Which rug, he wants to know, appears more cozy? He shows her the options on his phone video feed. Clearly a bit overwhelmed, Nagle suggests he trust his own judgment. Chaudhuri reminds her, however, of the importance of coziness in her life. Taking a moment, she eyes the options and makes a choice. Then catching the eye of Vnokeckv, her face softens; she exhales and smiles.
Work and life intertwine. Nagle is home. But in courtrooms far away from dogs and babies, Nagle is what many would call a “big gun” in legal circles. She’s a champion for missing and murdered Indigenous peoples, working for the rights and safety of Native people.
It’s a calling she traces back generations in her family.
“It’s very inspiring for me to have that heritage,” she said. “I wanted to fight for sovereignty and came to learn about Native women and advocacy around the Violence Against Women Act. Fighting to restore tribal criminal jurisdiction is real active sovereignty.”
Fighting for sovereignty
A citizen of the Cherokee Nation of Oklahoma, lawyering is in her blood. Nagle is a descendent of John and Major Ridge, signers of the controversial Treaty of New Echota in which Cherokee surrendered lands east of the Mississippi and embarked on the infamous Trail of Tears.
Although Major Ridge was later assassinated by rivals within the tribe for his family’s support of the treaty, the Ridges ultimately functioned as diplomats, making the most of what they saw as the tribe’s inevitable removal and preserving the tribe’s rights as a sovereign nation.
“I’ve been very interested in being an attorney since I was a little girl,” Nagle said. “My Grandma told me stories about my great-great-grandfather Major Ridge and his involvement with Worcester v. Georgia.”
The 1832 Supreme Court case affirmed tribal sovereignty. And although as a Native man, Ridge could not formally practice law in the U.S., he and his son John were key players in supporting legal challenges to the tribe’s sovereignty.
The 2013 VAWA Reauthorization Act is a key law that includes provisions giving tribes the authority to prosecute non-Native domestic violence offenders in tribal court.
Currently, Nagle is counsel to the National Indigenous Women’s Resource Center, a nonprofit, Native-led organization working to end violence against Native women and families. Before joining the NIWRC, Nagle was a partner at the Pipestown Law Firm, where she worked extensively drafting Missing and Murdered Peoples (MMIP) and the Violence Against Women Act (VAWA) related legislation. She has also authored numerous friend-of-the-court briefs in the U.S. Supreme Court, highlighting the impacts that legal decisions such as her work with Sarah Deer of the Muscogee (Creek) tribe on Dollar General v. Mississippi Band of Choctaw Indians, McGirt v. Oklahoma, Brackeen v. Haaland and others can have on tribal sovereignty and the safety of Native women and children.
Nagle’s legal chops and education are impressive, with an undergraduate degree at Georgetown University, a law degree from Tulane University Law School, teaching at Northwestern University Law School, a litigation associate representing the Federal Housing Finance Agency, clerking for firms arguing cases before the Supreme Court as well as clerk to a judge in the Fifth U.S Court of Appeals.
But all letters and academic achievements aside, it has been Nagel’s perspective and innate gifts as an Indigenous woman that have helped her stand tall above her non-Native colleagues – her gift as a storyteller. Historically, most tribes have no written language and have depended instead on oral traditions to pass along knowledge, culture and traditions. In many tribes, it has been women who play a primary role in this style of education.
Taking center stage
“I love theater,” Nagle said.
But after deciding that acting might not be her fulltime career, she turned to writing plays, publishing her first play in 2008. She became fully convinced of the power of storytelling after witnessing the role that first-person testimony from survivors of domestic violence and advocates played in the passage of VAWA 13.
Nagle recalled the battle in convincing Congress to pass the legislation. House Majority Leader Eric Cantor , a Republican from Virginia who voted against the Senate-passed Violence Against Women Act reauthorization, played a primary role in blocking the law’s passage. Cantor led a group of Republican colleagues who strongly opposed expanding tribal jurisdiction over non-Natives, describing it as “a violation of the constitutional rights of non-Native Americans.”
Supporters of the act, realizing that Congress and the public needed to hear the first-hand stories of domestic violence survivors and advocates, arranged to bring them to Washington, D.C., to speak before lawmakers. And indeed, it was story that won the day.
As reported by the The New York Times, then-President Barack Obama signed VAWA 13 into law at an atypical ceremony, at an auditorium at the U.S. Department of Interior that was large enough to accommodate the advocates and survivors who’d come to share their stories.
Later, according to Nagel, several supporters who worked on passing VAWA encouraged her to write a play about the role of story in the process. “People like Deb Parker and others said to me, ‘Hey, you’re a playwright, why don’t you write about this?” Nagle said. And so she did.
Parker of the Tulalip Tribes of Washington, was a board member of NIWRC; she shared her own story of sexual and physical abuse to Congress. She is currently the CEO of the National Native American Boarding School Healing Coalition.
Nagel’s play, “Sliver of a Full Moon,” depicted a reenactment of events leading up to and the passage of VAWA 13, documenting and memorializing how Native women organized from the ground up to create change and a measure of justice.The characters in the play are survivors who shared their stories with Nagle, including Lisa Brunner of the White Earth Ojibwe Nation who describes the reauthorization of VAWA in the script.
“The partial restoration of tribal jurisdiction in VAWA 13 is just a sliver of the full moon we need to ensure all our women are safe,” Brunner says. “Until all our tribe’s jurisdiction is fully restored, no one is safe.”
Nagel’s play debuted in June 2013 at the NIWRC conference in Albuquerque, New Mexico, and has since been performed at Yale and Harvard law schools, the National Museum of the American Indian in Washington, D.C., and others. Her other plays include “Sovereignty,” which like “Sliver of a Full Moon” depicts the relationship between Native Americans and U.S. federal laws that often run counter to their well-being and basic rights.
Nagel’s plays show how theater and art can be powerful tools for generating social and legal change. And on a deeper level, they feature story as a vehicle towards healing.
“So many of our stories have been silenced but I think there’s a lot of healing in them,” she said. “Story is medicine.”
Nagel’s plays are chock full of quotes that deliver sledgehammer precision in describing how disparities in federal law hurt Native peoples. For instance, the character Sarah Ridge Polson in “Sovereignty” says, “If you can erase sovereignty over my body, you can erase the sovereignty of my nation.”
The closing statements of “Sovereignty” include the following, “Native American sovereignty isn’t unconstitutional. It’s pre-constitutional.”
Addressing MMIP
Funding public safety in Indian Country is a federal trust duty and responsibility, Nagle notes. But getting Congress to allocate the funding is another matter.
“We need more federal resources and more funding for law enforcement on reservations,” she said.
Nagel expressed frustration with lawmakers who want to wait until legislation is passed to restore tribal jurisdiction over non-Natives before seeking funding. A so-called “Oliphant fix,” for example, would address the U.S. Supreme Court decision in Oliphant v. Suquamish Indian Tribe that held that tribal courts lack inherent jurisdiction to prosecute non-Natives.
Congress has been reluctant to provide funding before knowing how many tribes would be willing to take over their own jurisdictions.
“But I think the first step is to get the fix done,” she said. “You have to get started somewhere.”
Part of the reason that tribes have asked Congress to restore their criminal jurisdiction is that the federal government isn’t policing violent crime against Native peoples, according to Nagel.
“Prosecuting crime in Indian Country isn’t a priority for the FBI,” she said. “And they are often the ones with jurisdiction over crime on reservations.”
Although she has encountered FBI agents who do excellent work in Indian Country, Nagle has been shocked and disheartened by the blatant racism expressed by others. But she adds that the FBI’s failure to allocate resources to Indian Country is not entirely the agency’s fault if Congress won’t provide funding.
And unfortunately, she notes that changes in political leadership haven’t played much of a role in the funding challenges. “It’s been both Democrats and Republicans refusing to allocate sufficient resources and funding,” she said.
Shining a light
Nagle is fresh off a win that shines a hard light on how federal failure to fund policing in Indian Country hurts Native peoples. As counsel for the NIWRC, Nagel filed an amicus brief supporting a Northern Cheyenne woman’s appeal to the Ninth U.S. Circuit Court of Appeals that reversed a lower court’s decision to dismiss the woman’s lawsuit for harm she suffered as the result of rape by a Bureau of Indian Affairs police officer. The woman, referred to as “L.B.” in court documents, was awarded $1.6 million following a decade-long fight for justice.
L.B. was sexually assaulted in her home on the Northern Cheyenne Reservation in Montana on Oct. 31, 2015, by BIA officer Dana Bullcoming while he was on duty. The assault resulted in pregnancy for L.B.
According to the court’s findings, L.B. called police to her home over concerns that her mother was driving drunk. Bullcoming responded to the call, arriving at L.B.’s home where he administered a breathalyzer test which indicated she was intoxicated. He then threatened to arrest her and turn her children over to child protective services if she refused to have sex with him. Alcohol is illegal on the Northern Cheyenne Reservation.
“L.B. believed she had only two choices: to be arrested meaning her children (ages 10 and 12) would be taken away and she would lose her job, or have sex with Officer Bullcoming,” according to the court document.
U.S. District Judge Donald W. Molloy found the United States liable for Bullcoming’s sexual assault of L.B. by furnishing the officer with both the power and opportunity to do so. The U.S. contributed to the assault by creating a situation in which Bullcoming was often alone while on duty and failing to require officers to wear body cameras at that time.
Molloy also noted in court documents that L.B.’s assault was not an isolated incident despite BIA’s policies to the contrary and acknowledged staggering rates of sexual violence by BIA law enforcement.
“This case shines a light on the realities of being a Native American woman living on a reservation policed by the BIA,” he wrote. “In general there is systemic misconduct within the BIA and violence against women on reservations.”
In 2017, Bullcoming pleaded guilty to raping L.B. and was sentenced to 36 months in prison; he was also found liable for over $1.6 million in child support to the victim. The most recent trial was aimed at determining if the federal government was liable as well for Bullcoming’s crimes.
“I think the BIA has a history of hiring perpetrators and also keeping them on and not letting them go even after they’ve assaulted people,” Nagel said. She noted that the NIWRC and other Native organizations have sent numerous letters over the years to government leaders, including then-Interior Secretary Deb Haaland and then-President Joe Biden asking them to put programs and policies in place to ensure such assaults don’t continue to occur.
“We got no responses or indications that they had any interest in addressing this crisis,” Nagel said.
According to Nagel, low pay and lack of resources for BIA police contribute to criminal activity like that found in the L.B. case. “The work is dangerous, exhausting and underpaid, and officer turnover is high,” she said. “When you set up a law enforcement agency like this, you’re setting it up to fail.”
“Sometimes,” she added, “it takes a court order requiring a federal agency to pay money for them to pay attention. Maybe now they’ll put some changes in place to make the system better for Native people.”
Looking ahead
Nagle is currently litigating a number of cases that take on issues of sovereignty especially in how it relates to ensuring safety and justice for Native peoples.
“Sometimes the only way we can fight back is by winning court cases that help change the system and make it better for Native peoples, “ she said.
Overall, for Nagle the work involves a lot of losses and some victories. “The victories are fun to celebrate but we’ve really got to support one another; having that built in support network with other women is crucial,” she said.
Lost in thought, Nagel grows quiet. Vnokeckv pops in for another sip of breast milk. Nagle’s twin golden retrievers snooze on the living room floor in their respective patches of sunlight.
“You know, as traumatic as my work can be, I have a very beautiful family and a beautiful home. Not everyone gets to live with a beautiful baby, husband and kids and dogs.”
For Nagel, prioritizing coziness, safety and warmth is not a trivial matter, it’s an essential element for nurturing and healing the soul, providing the strength to go on.