The Muscogee Nation Supreme Court heard oral arguments today over whether the nation must honor a 159-year-old treaty’s promise to grant citizenship within the nation to Muscogee Freedmen. Attorneys representing Freedmen descendants argued a 1979 constitutional change that stripped them of their citizenship violated the treaty, while attorneys representing the Muscogee Nation’s Citizenship Board argued the tribe’s obligation to provide citizenship was not perpetual.
Written in 1866, the treaty officially ended the last declared war between the U.S. and the Muscogee Nation. The treaty granted citizenship to Muscogee Freedmen: people of African descent held in slavery by Muscogee citizens prior to the American Civil War, as well as their descendants.
After Muscogee (Creek) Nation District Judge Danette Mouser ruled in September 2023 the treaty provisions required the Muscogee Nation Citizenship Board to enroll Rhonda Grayson and Jeffrey Kennedy based on their descent from Muscogee Freedmen listed on the Dawes Rolls, the board appealed to the Muscogee high court. The case was originally set for oral arguments last summer, but the passage of — and legal challenges to — a special judge law delayed the hearing. After a few snow-related delays, the court heard oral arguments on the special judge law in February and ruled it unconstitutional in April.
That led to the Freedmen case’s oral arguments, which were conducted by Zoom on Tuesday.
While Grayson’s and Kennedy’s attorney, Jana Knott, argued that treaty rights can only be abrogated by an act of Congress, Dean Luthey of GableGotwals argued on behalf of the citizenship board that the grant of citizenship was not perpetual and that the tribe retained the right to alter its membership criteria after the treaty was implemented.
“In 1866, the nation and the United States entered into a treaty,” Luthey argued. “As part of that treaty, certain Freedmen and their descendants were given the rights of native citizens. Now that treaty — in the portion dealing with that grant of rights by the nation — that treaty did not use words of ‘perpetuity,’ and that treaty did not say that the nation was giving up its rights to determine citizenship in the future.”
Luthey’s argument is premised on the reserved rights doctrine, which instructs courts to assume rights not explicitly given up by a treaty provision are reserved or retained by the tribe. He argued that because the treaty did not explicitly relinquish the right of the Muscogee Nation to change its citizenship laws, the nation retained the right to alter them at a later date. Since the nation had granted Muscogee Freedmen citizenship after the treaty, the nation fulfilled its obligation and retained the right to alter its membership to exclude them later, he claimed.
While Luthey framed his argument as “retained rights,” Knott cast it as “abrogation.”
“Although the citizenship board has told this court that this case is not about treaty abrogation and have even gone as far as not using the word abrogation today or in their briefing, this case is about treaty abrogation,” Knott argued. “Each of the board’s arguments that they have made today is a form of implied abrogation. There is simply no other legal doctrine that gets them to the result they seek. The U.S. Supreme Court has made clear in McGirt, Minnesota v. Mille Lacs Band of Chippewa Indians, and United States v. Dion — all of which we cite in our brief — that congressional abrogation of a treaty must be clear and unequivocal. It cannot be implied.”
Knott argued the treaty was clearly intended to prevent the racial exclusion her clients have experienced.
“That binding promise was made precisely to avoid the situations in which my clients find themselves today,” Knott said. “(They are) being excluded from this nation, from their culture, their birthright and their heritage because they are of African descent.”
She also argued the treaty’s lack of “perpetual” language did not grant the tribe the ability to later strip citizenship any more than it would grant the tribe the right to reinstate slavery.
“Let’s narrow it down even further. Let’s say the voters in this nation including the Freedmen and their descendants voted in 1979 to reinstate slavery. Even though the Freedmen voted on that provision, there would be no question the provision was unconstitutional under both Article 2 of the treaty and 13th Amendment to the United States Constitution,” Knott argued. “Both of which clearly prohibit slavery, as well as the badges and incidents of slavery.”
Other attorneys present at the hearing but not speaking were Damario Solomon-Simmons for Grayson and Kennedy, as well as Trent Shore and Barrett Powers for the citizenship board.
‘Political implications of the 1979 constitution’
Five justices heard the oral arguments Tuesday, and all but Justice George Thompson asked questions during the hearing. However, those questions offered few clues as to their leanings in the case. Justices Amos McNac and Leah Harjo-Ware have recused from the case, meaning a five-justice panel will make a ruling.
Chief Justice Andrew Adams III was the most vocal questioner, asking each attorney several substantive and procedural questions throughout the hearing. He pressed Luthey for precedent on the issue of whether treaty rights require perpetual language to continue to be in force, to which Luthey pointed to the Oklahoma Indian Welfare Act and the U.S. Department of Interior’s approval of the tribe’s revised 1979 Constitution. Luthey argued that approval implied the U.S. approved of the tribe’s disenfranchisement of Muscogee Freedmen. Knott rebutted the point by noting Congress has the power to abrogate treaties, not the executive branch through the Department of Interior.
Justice Kathleen Supernaw asked about the procedure for notifying citizens of the constitutional referendum in the 1970s.
“Now, didn’t the nation’s members at that time also have to approve that constitution before it was submitted to the United States for approval?” Supernaw asked. “Is there any institutional memory or documentation about how notice was given to all the members in order to vote on the constitution? How was it presented to the people?”
Luthey said all tribal citizens were eligible to vote in the 1970s constitutional referendum and that proper notice was given, but that documentation may not be in the court record. Knott maintained Muscogee Freedmen did not vote in the 1970s constitutional referendum.
Vice-Chief Justice Richard Lerblance seemed particularly interested in why the language of the 1866 treaty was not included in the tribe’s most recent constitution.
“Why, in the 1979 constitution, did they take out the language, or not include the language, from the 1866 treaty that allowed the Muscogee Freedmen to be enrolled citizens?” Lerblance asked. “Why did they take that out in the 1979 constitution?”
Luthey responded that he had no idea and cannot know why voters supported it, but Knott argued then-Principal Chief Claude Cox made the intent of the omission clear.
“Article 3 of the 1979 constitution was passed because of racial motivation, and it was specifically passed to strip the Black Creek Freedmen and their descendants of citizenship,” Knott claimed. “Principal Chief Claude Cox said to the national council on Oct. 29, 1977, before the passage of the 1979 constitution, he said, quote, ‘That is what we’re fighting for — blood quantum — trying to fight back and get the people in control because under the old constitution — the 1867 constitution — you’ve lost before you started. There were three Freedmen bands that would outnumber you today as citizens. So if we want to keep the Indian in control, we need to take a look at this thing and get us a constitution that will keep the Creek Indian in control.'”
Lerblance seemed satisfied with Knott’s explanation.
“So there were political implications of the 1979 constitution,” Lerblance commented.
Justice Montie Deer asked a few questions on whether the United States, as the other party to the treaty, would have an opportunity to weigh in on the question of interpreting the treaty. Since no federal agency filed an amicus brief with the court, there is no guidance on how federal officials interpret the treaty provision.
Notably, the court denied a request to file an amicus brief from U.S. Reps. Maxine Walters (D-CA43), Joyce Beatty (D-OH3), Yvette Clark (D-NY9), Emanuel Cleaver (D-MO5), Danny Davis (D-IL7), Sylvia Garcia (D-TX29), Al Green (D-TX9), Steven Horsford (D-NV4), Hank Johnson (D-GA4), Barbara Lee (D-CA12), Gregory Meeks (D-NY5), Brad Sherman (D-CA32) and Rashida Tlaib (D-MI12), which would have expressed the interpretations of some federal officials. Waters has previously advocated for Freedmen descendants to be granted citizenship within the Five Tribes.
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After a century of enfranchisement, 1979 constitution disenfranchised Muscogee Freedmen
During the American Civil War, the Muscogee Nation experienced its own civil war between pro-Confederate and pro-Union factions. The pro-Confederate faction held control of most of the government and territory of the nation and passed laws to re-enslave free Muscogee people of African descent, while much of the pro-Union faction fled Indian Territory for refugee camps in Kansas. After the civil war, the nation was forced to negotiate a new treaty in 1866 with the United States that included land concessions and required the nation grant citizenship to Muscogee Freedmen who returned to the territory within a year (accounting for the fact many had fled to refugee camps outside of the Muscogee Nation during the war) and their descendants.
Article 2 of the treaty reads:
Inasmuch as there are among the Creeks many persons of African descent, who have no interest in the soil, it is stipulated that hereafter these persons lawfully residing in said Creek country under their laws and usages, or who have been thus residing in said country, and may return within one year from the ratification of this treaty, and their descendants and such others of the same race as may be permitted by the laws of the said nation to settle within the limits of the jurisdiction of the Creek Nation as citizens [thereof], shall have and enjoy all the rights and privileges of native citizens, including an equal interest in the soil and national funds, and the laws of the said nation shall be equally binding upon and give equal protection to all such persons, and all others, of whatsoever race or color, who may be adopted as citizens or members of said tribe.
After the Treaty of 1866, Muscogee Freedmen were treated as citizens by the Muscogee Nation until a new constitution was written in the 1970s. Then-Muscogee Nation Principal Chief Claud Cox advocated for limiting citizenship to “Creeks by blood,” making the descendants of people listed on Muscogee Freedmen rolls ineligible for citizenship. Because federal agents who created the tribal rolls in the early 20th century were influenced by American notions of race such as the infamous one-drop rule, many Muscogee Freedmen with a known Creek ancestor were listed solely as Freedmen with no Indian ancestry.
Since the approval of the new constitution in 1979, Muscogee Freedmen who do not have an ancestor listed on the Dawes Rolls as “Creek by blood” have been excluded from citizenship despite documented ancestry to people listed as “Creek Freedmen” on the Dawes Rolls. Descendants of Muscogee Freedmen who also have an ancestor listed as “Creek by Blood” on the Dawes Rolls are currently eligible for citizenship.
Adams, the Muscogee Nation Supreme Court’s chief justice, said the court “will do our best to issue a decision as soon as we possibly can.”
