In a case stemming from the ongoing battle over whether Freedmen descendants can be citizens of the tribal nation, the Muscogee Nation Supreme Court declared a special judge law unconstitutional April 22, blocking the legislative and executive branches from appointing temporary special justices to sit for one specific case when a justice recuses. The court said the law, passed by the Muscogee National Council, violated the nation’s separation of powers protections. Instead, the court held that it can create its own temporary justice appointment rules and released its own procedure for appointing special justices.
“The constitution is clear, and this court has been clear. The judicial power of the nation rests with the Supreme Court. The constitution provides the legislative branch with a check on the judicial branch’s power through the confirmation process of justice nominees, through the creation of inferior courts, and through its approval of Supreme Court procedures. Outside of these limited areas, the legislative branch cannot pass law effecting the judicial branch of government,” the court wrote in a per curiam decision. “For these reasons, the court finds NCA 24-077 as unconstitutionally void and unenforceable.”
The court articulated two major holdings: The National Council cannot constitutionally mandate the number of justices required to hear a case; and the National Council cannot create the procedure for appointing special justices. Justices said their main concern with allowing the council to create the procedure for special justice appointments is the appearance of impropriety created by the council selecting judges to hear cases in which the legislative body is involved.
“There is a great public perception that NCA 24-077 and the tribal resolutions appointing the two special justices were enacted to produce a desired result, whether or not that perception is correct. In reality, this perception would be the case in any matter (present or in the future) in which the legislative or executive branch is a party to the action before this court. It defies reality to believe opposing parties, the public, or foreign jurisdictions would not suspect wrongdoing when a party in an appellate matter is given the ability to unilaterally select the judicial officer hearing their case,” the court wrote. “Under this court’s caselaw precedent (mentioned above), such a perception would be enough to justify recusal of the newly appointed special justice from the outset, creating an endless loop in which every special justice appointee would be expected to recuse as soon as they assumed the case.”
In addition to its April 22 order, the court also released new appellate rules that include its own special justice appointment procedures. Now when a justice recuses, the justices of the court have the discretionary power to appoint a special justice by a majority vote. The special justice is required to be a Muscogee citizen and not have a felony conviction. It is unclear if the court intends to invoke the new rule to appoint special justices in the pending Muscogee Freedmen appeal.
Finding special judge law unconstitutional paves way for Muscogee Freedmen arguments
The court striking down the special justice law brings it closer to hearing oral arguments on another case over whether Muscogee Freedmen, the descendants of people formerly enslaved by some Muscogee people before the end of the Civil War, are entitled to Muscogee citizenship under the Treaty of 1866. The Freedmen citizenship case was paused pending the resolution of the special judge case, but as of Friday a new date for oral arguments in that case had not been released.
In September 2023, Muscogee Nation District Judge Danette Mouser issued an order requiring the Muscogee Nation Citizen Board to enroll Rhonda Grayson and Jeffery Kennedy based on their descendance from individuals listed on the Muscogee Freedmen roll. The Muscogee Nation immediately appealed, and the enrollment of descendants was paused pending the appeal. The case was docketed by the Supreme Court in October, and Justice Leah Harjo-Ware recused the same day. In May 2024, Justice Amos McNac recused after the nation motioned for his recusal based on his involvement with writing the constitution.
A month after McNac recused, the National Council scheduled an emergency meeting to approve NCA 24-077, a bill which would allow the council and principal chief to appoint temporary special justices for one case when a justice recuses. By July, attorneys for the Muscogee Freedmen had challenged the special judge law as a violation of the separation of powers. Oral arguments were scheduled for early this year, but delayed until February after snowstorms.
Jason Salsman, press secretary for the Muscogee Nation, provided a statement on the April 22 special justice law decision:
The Muscogee (Creek) Nation acknowledges the Supreme Court’s recent decision declaring the special justice law (NCA 24-077) unconstitutional. This law was originally enacted to ensure that the nation’s highest court could maintain a full bench when justices recused themselves, thereby upholding the integrity and efficiency of our judicial process. We respect the court’s authority and its interpretation of our constitution. Our legal team is diligently reviewing the ruling to understand the specific constitutional concerns raised. It is imperative that matters brought before our Supreme Court receive consideration from a complete panel of justices, reflecting the gravity and significance of the issues at hand. To this end, we are committed to enacting policy that aligns with constitutional requirements while addressing the practical needs of our judiciary.
The Muscogee (Creek) Nation remains steadfast in its dedication to the principals of separation of powers and the rule of law. We will continue to work collaboratively with all branches of government to ensure that our legal framework serves the best interests of our citizens and upholds the sovereignty of our nation.
Grayson, Kennedy and their attorneys praised the decision in a press release.
“The court rightly affirmed the rule of law and brings us closer than ever to finally securing citizenship for Creek Freedmen as guaranteed by the Treaty of 1866,” said Damario Solomon-Simmons, lead attorney for Grayson and Kennedy.
Solomon-Simmons’ co-counsel Jana Knott provided more detailed comments on the decision.
“[The litigation team is] extremely pleased with the court’s ruling finding NCA 24-077, the ‘special justice’ law, unconstitutional and unenforceable,” Knott said. “While the court’s ruling removes yet another obstacle in the continued fight for Creek Freedmen to regain their rightful citizenship under Article 2 of the Treaty of 1866, the court’s decision also reinforces basic principles of separation of powers and due process and highlights the importance of the integrity and independence of the judicial branch.”
Grayson and Kennedy were optimistic and said they look forward “to the MCN Supreme Court finding that Article 2 has not been abrogated and must be followed by MCN in the near future.”
