MUSCOGEE RESERVATION — As the snow blanketing the reservation begins to thaw, attorneys representing the Muscogee Nation and the descendants of Muscogee Freedmen huddled around their webcams instead of a cozy fire Friday morning to argue the constitutionality of a controversial special justice law passed by the Muscogee National Council last year that some have called an attempt at “court packing.”
The law, proposed by Principal Chief David Hill, allows for the principal chief and the nation’s legislature to appoint special justices to oversee specific cases if a Supreme Court justice recuses. The court originally had been scheduled to hear the special justice litigation Jan. 10, but a different snow storm caused the proceedings to be delayed.
Friday’s hearing included arguments over media coverage of the case, concerns about potential habeas corpus cases that could appear before the court and the role of separation of powers under the Muscogee Constitution.
“The National Council’s passage of the special justice law is not a legislative fix,” Jana Knott, an attorney for the Freedman descendants, said in her opening argument. “It is an attempt to pack this court in the Creek Freedmen citizenship case to overturn Judge (Denette) Mouser’s landmark ruling that Creek Freedmen and their descendants are entitled to citizenship under Article 2 of the Treaty of 1866.”
Rhonda Grayson and Jeffery Kennedy, descendants of Muscogee Freedmen, are challenging the special justice law as a violation of the tribe’s constitutional separation of powers. The case gained steam as the Supreme Court ruled Muscogee Nation Attorney General Geri Wisner could not participate and that the National Council and principal chief would need to find their own legal representation. In their briefs, Hill’s attorneys expressed particular annoyance over court orders appearing to accept the framing of the case as a separation of powers issue, a sentiment they echoed at Friday’s hearing.
Muscogee Freedmen are the descendants of people of African descent, both enslaved and free, who were adopted into the Muscogee Nation before the end of the 1860s. After the Civil War — which included a devastating civil war amongst pro-Union and pro-Confederate Muscogee citizens in Indian Territory — the nation was required by the Treaty of 1866 to grant citizenship to all of the descendants of former Muscogee slaves. (During the wars, free people of African descent in parts of the Muscogee Nation under the control of Confederate sympathizers were re-enslaved, while in the pro-union areas they remained free.)
Between the 1860s and 1970s, Muscogee Freedmen were citizens of the Muscogee Nation, but a constitutional convention in 1977 rewrote the nation’s constitution and explicitly excluded the Muscogee Freedmen from retaining their citizenship. The new constitution limited the tribe’s membership to “Muscogee (Creek) Indians by blood,” relying on the fact early 20th century Indian agents did not track freedmen’s Indian descent to de facto expel the majority of them from the tribe.
“That’s what we’re fighting, this blood quantum, trying to get back and let the people control because under the old constitution, you’ve lost before you ever started,” one delegate to the 1977 convention said of Freedmen citizenship. “There were three Freedmen bands that would outnumber you today as citizens. So, if we want to keep the Indian in control, we’ve got to take a good look at this thing and get us a constitution that will keep the Creek Indian in control.”
Muscogee Nation attorneys: Freedmen ‘motivated by financial reward’
While Knott focused on the separation of powers arguments during the hearing Friday, Kyle Haskins represented the National Council and spent most of his prepared statements criticizing the appellant attorneys’ use of the media during the case.
“It’s appellants’ continued use of inflammatory statements in their pleadings and in their offensive media releases impugning the Muscogee Creek Nation that simply have mandated that I absolutely speak today,” said Haskins, a former Oklahoma district judge and former Cherokee Nation Supreme Court justice. “The cries of injustice being made by appellants as claimed Creek Freedmen descendants — who admittedly are seeking citizenship motivated by financial reward — do not compare to the atrocities committed upon the Muscogee Creek people who suffered organized and systematic ethnic genocide. Enslavement is a tragic chapter of American history. However, those atrocious acts do not overshadow attempts by the United States government to completely eradicate the Muscogee Creek people.
“Appellants will allege the conduct of Principal Chief (David) Hill and the National Council to be ‘small town corruption,’ ‘stacking the deck,’ and describe this honorable court’s newly appointed special justices as ‘hand-picked lackeys.’ Contrary to appellants’ disrespectful pleadings and derisive media one liners, the special justice laws protect the due process rights of the parties.”
In addition to Knott, the Muscogee Freedmen are represented by Damario Solomon-Simmons‘ law firm, and he also runs a nonprofit that frequently sends press releases updating media on the case from his clients’ perspective. (The video recording of the hearing available on YouTube was streamed live by Solomon-Simmons’ nonprofit.) While many attorneys shy away from media statements around pending cases, some trial attorneys like Solomon-Simmons use press releases and conferences as part of their trial strategy, drawing attention to their cases and increasing pressure on the judiciary.
Haskins argued that Solomon-Simmons’ strategy as used in this case has been designed to “draw ire from persons whose ancestors were enslaved.”
“Appellants’ claims of conspiracy committed under the cover of darkness, the hand-picking of corrupted special justices, and arrogation of governmental powers are neither supported by fact or law,” Haskins said. “Appellants’ sensationalistic allegations grasping for media attention and public shaming are simply improper. Media pandering from officers of this court — who took an oath upon admission to the Muscogee Creek Nation Bar to uphold and defend the Muscogee Creek Nation Constitution — has no place before this honorable tribunal.”
Rod Wiemer, representing Principal Chief David Hill, focused his time on arguing that the separation of powers framing was incorrect and encouraged the court to find that the issue before the court was an unjustifiable political question.
“As an initial matter, Chief Hill strongly disagrees that this case is a dispute among the nation’s three branches of government,” Wiemer said. “We believe the bottom line is this: The National Council exercised its constitutional authority by enacting NCA-24-077, the special justice law, and to confirm two special justices who were nominated by Chief Hill under that law. Just because the petitioners do not agree with the seating of those two justices does not negate the fact that Chief Hill and the National Council acted within their clear constitutional powers. And the exercise of these powers does not infringe or interfere with any constitutional authority of the judicial branch.”
‘Tortured’ precedent required legislative fix, argues chief’s attorney
While each attorney presented statements emphasizing what they think is the most important issue in the case Friday, justices had their own thoughts and questions. Chief Justice Andrew Adams III, first appointed in 2012, was the most vocal questioner amongst the justices, inquiring extensively of each attorney.
One of Adams’ questions involved how appointing temporary judges would effect the timing of criminal appeals, especially habeas corpus petitions. (A habeas corpus petition filed in federal court against the Muscogee Nation by Attorney General Gentner Drummond on behalf of Okmulgee County jailer Matthew Douglas is pending with no new filings or orders since June.)
“From a due process standpoint, do you have any concerns from a criminal standpoint where the nation may have apprehended someone who has a legitimate habeas corpus argument against the nation, but because of whatever reason — like if there had been a recusal and a new justice had to be seated — do you have any concerns about that potential habeas litigation sitting for an undue amount of time because the nation, for whatever reason, can’t get seven justices to hear a case?” Adams asked. “My concern is a litigant who has a proper habeas allegation could potentially sit for a long time, and I’m asking if you share that concern or not?”
Haskins argued the law would not cause any undue delays in criminal proceedings.
“I always share concerns for the due process rights in regards to individuals with criminal misconduct,” Haskins responded. “But most certainly, this is a process that does not engender delay and it doesn’t provide for unnecessary response. Justice, I understand what you are saying, and certainly due process rights of criminal defendants should be elevated beyond all others. I do not see in the process that has been established a delay that is forward or that would compromise their rights.”
Justice Kathleen Supernaw, first appointed in 2010, asked whether any federal court had ever found a tribal court violated the Indian Civil Rights Act because there was not a fully seated court.
“No, because I think this is such a novel issue that, despite a search, I could not find anything within [the courts] that dealt with this particular issue,” Haskins said.
RELATED
Muscogee Supreme Court: Freedman case spurs powers dispute over special justice law by Tristan Loveless
Later in the hearing, Wiemer — Hill’s lawyer — referenced a previous court case that provoked some resistance from one of the justices. In Ellis v. Checotah Muscogee Creek Indian Community, justices effectively overturned a Muscogee Nation law requiring a four-justice majority to decide cases without explicitly declaring it unconstitutional. The ruling found that the statute requiring four judges to agree at the end of an appeal only applied when a full court heard the case, effectively making the rule inapplicable without explicitly finding it unconstitutional for violating the separation of powers.
When Wiemer quoted Justice Leah Harjo-Ware’s dissenting opinion in the case, she politely interrupted him to emphasize the binding nature of the case’s majority opinion.
“Mr. Wiemer, this is Harjo-Ware, and I did say those things,” Harjo-Ware said. “Since we have the Ellis decision and it is now stare decisis, why is it necessary to fix something that isn’t broken?”
Wiemer responded by quipping the Ellis majority opinion’s twists and turns were enviable to an Olympic gymnast.
“Well, it’s because the legislature disagreed with the Supreme Court’s decision that in Ellis that four doesn’t mean four. That four justices in agreement doesn’t mean four justices in agreement. That four doesn’t equal four. And so they legislatively fixed that,” Wiemer said. “If you look at the decision in Ellis vs. Checotah, it is tortured and the conclusion required such legal gymnastics that Simone Biles would have been jealous. I mean, getting to that decision really took some twisting around of the words of the statutes.”
Supernaw also asked both Haskins and Wiemer whether they had any concerns with the special justice law being applied when the executive or legislative branches were parties to the litigation. Haskins acknowledged “the appearance” of the chief and National Council appointing special justices to cases in which they were a party, but affirmed there had to be some process for selecting judges. Wiemer argued special justices were no different from normal justices.
“It is as fair as all of you justices who have been appointed by a principal chief and confirmed by the same National Council to hear the case,” Wiemer said. “You can’t have recusals unless there is litigation ongoing, and you can’t appoint unless there is [a recusal]. Any process can be subject to criticism. What we attempted to do was to mirror the process required for Supreme Court justices so they don’t have a lesser process.”
Justices Montie Deer, George Thompson Jr. and Amos McNac declined to ask questions. At the conclusion of the hearing, Adams said the decision would take more than 10 days.
“The court will work expediently to issue that decision, but I am not going to guarantee a deadline,” Adams said. “But I will give you the assurance that the court will give this a priority and issue a decision as quickly as we can.”
