The Muscogee Nation Supreme Court affirmed a district court’s ruling that Muscogee Freedmen are entitled to citizenship within the tribal nation and held that references to a “by blood” requirement in the nation’s laws have been unlawful since their inception. Muscogee Freedmen — people of African descent held in slavery by some Muscogee citizens prior to the U.S. Civil War — were granted citizenship by the nation’s Treaty of 1866 with the United States. Freedmen and their descendants held citizenship in the Muscogee Nation until a new constitution was written in 1979.
After today’s ruling, Muscogee Freedmen are once again eligible for citizenship within the Muscogee Nation. The nation becomes the second of the Five Tribes to grant citizenship to their nation’s Freedmen. In 2017, the Cherokee Nation Supreme Court certified a U.S. federal court decision that also found a “by blood” requirement in its laws was void ab initio, and Cherokee Freedmen have held full citizenship rights since.
With two justices recused and not participating, the Muscogee Nation Supreme Court’s order was signed by all five remaining justices.
“Upon applying [the canons of Indian treaty construction], the following facts are clear to the court: (1) historical writings, legislative actions, and court opinions in the years immediately following the ratification of the Treaty of 1866 clearly show that the historic Creek Nation believed the Treaty of 1866 demanded citizenship rights to be given to the Creek Freedmen, (2) this was the position of the historic Creek Nation for over 100 years, until the adoption of the 1979 Constitution of the Muscogee (Creek) Nation, and (3) Article II of the Treaty of 1866 clearly extends these citizenship rights to the ‘descendants’ of the Creek Freedmen, and gives no endpoint at which those descendants should be excluded,” the order reads. “(…) It is clear to the court that the nation’s right to exclude the Creek Freedmen from citizenship, both at the time of ratification, and for as long as there are living lineal descendants, has been foreclosed by the terms of the Treaty of 1866.”
Muscogee Freedmen Rhonda Grayson and Jeff Kennedy filed for citizenship with the Muscogee Nation Citizenship Board in 2019, and the board denied both applications that year. Grayson and Kennedy administratively appealed the board decision and were again denied citizenship. In 2020, the pair filed suit in the Muscogee Nation District Court to review their case. A two-day bench trial was held in April 2023, and District Court Judge Denise Mouser issued an order that September finding the citizenship board had acted “contrary to law” when it denied Grayson’s and Kennedy’s citizenship applications. Principal Chief David Hill’s administration quickly appealed to the Muscogee Nation Supreme Court.
Oral arguments in the appellate case were delayed after the Muscogee National Council passed a special judge law to allow the appointment of temporary judges to the Supreme Court when a justice recuses. The attorneys representing Muscogee Freedmen called the measure “court packing” and sued to prevent the appointment of temporary justices in their pending appeal. The Muscogee Supreme Court ultimately found the special judge law “void and unenforceable,” appointed its own temporary justices and rescheduled oral arguments for the Freedmen’s appeal.
During oral arguments in front of the court, attorneys for the Muscogee Nation argued that the Treaty of 1866 lacked “words of perpetuity,” allowing the nation to strip citizenship rights from Freedmen as long as they had been granted in the 1860’s. The court disagreed, finding that the Treaty of 1866 required the nation to maintain Muscogee Freedmen citizenship and declaring the “by blood” language of the 1979 Constitution void.
“While it is certainly true that the Muscogee (Creek) Nation retains the sovereign right to define its own membership, this court has clarified (above) that those membership requirements must be consistent with any applicable act of the United States Congress (in exercising its plenary power over Indian affairs), and the terms of any valid treaty made between the Muscogee (Creek) Nation and the United States. The 1979 Muscogee (Creek) Nation Constitution, in its current form (limiting citizenship only to Muscogee (Creek) Indians by blood, and their lineal descendants), stands as a complete barrier to Creek Freedmen citizenship and is wholly inconsistent with Article II of the Treaty of 1866,” the justices wrote. “As such, this court finds that any reference to ‘by blood’ citizenship, specifically in the 1979 Muscogee (Creek) Nation Constitution, but also in the Muscogee (Creek) Nation Code, or in any associated Mvskoke rules, regulations, policies, or procedures is unlawful and void ab initio.”
The court’s ruling effectively alters several sections of the Muscogee Nation Constitution to remove references to “by blood” requirements, however the court only explicitly provided the new language for Article 3, Section 2:
Persons eligible for citizenship in the Muscogee (Creek) Nation shall consist of Muscogee (Creek) Indians whose names appear on the final rolls as provided by the Act of April 26, 1906 (34 Stat. 137), and persons who are lineal descendants of those Muscogee (Creek) Indians whose names appear on the final rolls as provided by the Act of April 26, 1906 (34 Stat. 147); (except that an enrolled member of another Indian tribe, nation, band, or pueblo shall not be eligible for citizenship in the Muscogee (Creek) Nation.)
The court also found that “Muscogee (Creek) Indian” means “any individual who is able to trace their lineage to a Creek by-blood or Creek Freedmen name on the final rolls.” While the court explained how its ruling would affect the citizenship clause of the nation’s constitution, it did not interpret other sections of the code or constitution that contain the “by-blood” language, potentially teeing up future legal issues.
Damario Solomon-Simmons, one of the attorneys representing Grayson and Kennedy and himself a descendant of Muscogee Freedmen, praised the ruling.
“As Creek Freedmen, we’ve always carried the truth of who we are. Today, that truth was recognized. This decision affirms our place in the nation — not as outsiders, but as citizens,” Solomon-Simmons said in a press release. “We’re ready to walk forward together, guided by our elders, our communities, and our shared hope for what comes next.”
Hill, the nation’s principal chief, said his administration was determining its next steps.
“We are currently reviewing the order to understand its basis as well as its implications for our processes. It may be necessary to ask for a reconsideration of this order to receive clarity so that we can ensure that we move forward in a legal, constitutional manner,” Hill said in a statement.
Chief Justice Andrew Adams III and Vice Chief Justice Richard C. Lerblance, as well as Justices Montie Deer, Kathleen Supernaw and George Thompson Jr., signed the order, which did not identify an author. Justices Leah Harjo-Ware and Amos McNac recused from the case.
Muscogee Freedmen citizenship affirmed after 46 years of disenfranchisement
While it is unclear how many Freedmen descendants may now be eligible to enroll as Muscogee Nation citizens, Wednesday’s decision could ultimately see several thousand new citizens and voters added to the tribe’s membership. The speed with which Freedmen applicants will be admitted to the tribe remains unclear, but with a Sept. 9 voter registration deadline set ahead of the Sept. 20 election for eight Muscogee Nation Tribal Council seats, new Freedmen citizens may be motivated to participate in their first tribal election since the 1970s. Opposing the admission of Freedmen has historically been a campaign point for some long-time Muscogee political candidates.
The issue of Freedmen citizenship stemmed from a treaty between the Muscogee Nation and the U.S. enacted in 1866. The treaty ended the last war between the two nations, and as one of its terms, people of African descent whom the Muscogee Nation had enslaved were recognized as citizens, as were 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.
Citing a prior case of the Muscogee Nation Supreme Court that appears unavailable online — In Re:Roley McIntosh — justices said Wednesday that the Treaty of 1866 was understood to apply to three classes of people and grant them tribal citizenship.
“First, those lawfully residing in the nation at the time of the ratification of said treaty. Second, those who may have resided and may return to this country within one year from the certification of the treaty and their descendants,” the court wrote. “Third and such other of the same race, as may be permitted by the laws of the nation to remain within the limits of the jurisdiction of the nation.”
From the end of the U.S. Civil War until the adoption of a new Muscogee Constitution in 1979, Muscogee Freedmen who fell into one of those three classes were granted equal citizenship within the nation. However, a 1979 constitutional revision stripped Freedmen of their citizenship. Former Principal Chief Claude Cox is credited as leading the effort to include the “by blood” provision with the explicit goal of disenfranchising Freedmen.
“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,” Cox said during the constitutional convention. “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.”
Since the adoption of the new constitution, Muscogee Freedmen who could not also cite a “Creek by-blood” ancestor have been excluded from citizenship.
Some Muscogee Freedmen excluded from criminal jurisdiction agreement
While the Muscogee Nation Supreme Court’s ruling extends tribal citizenship to Muscogee Freedmen, it does not extend every legal right associated with Indian status. While Freedmen without Indian blood are legally tribal citizens, federal courts maintain they fail the legal requirements to be considered an Indian for purposes of criminal jurisdiction. Because of an 1840s murder case, federal courts look for both recognition as an Indian (through tribal citizenship) and “Indian blood” when determining whether a defendant is Indian in the criminal context.
While being Indian is considered a “political” category instead of a racial category under federal law, federal courts still require a racial component — documented Indian blood — when determining criminal jurisdiction because a U.S. Supreme Court case which predates the equal protection clause has never been reevaluated by the court. As an effect, Muscogee and Cherokee Freedmen without documented Indian blood can still face criminal charges in state courts, as well as potentially federal and tribal courts.
This distinction was highlighted when the Muscogee Nation and Tulsa Mayor Monroe Nichols recently agreed to adopt the 10th Circuit Court of Appeals test for Indian status when allocating criminal cases between the city and nation under a settlement agreement that says Tulsa “will not exercise criminal jurisdiction over Indian defendants on the nation’s reservation.” By including the “Indian blood” requirement, the agreement effectively grants the city jurisdiction over cases involving Freedmen without Indian blood while requiring that all other tribal citizens’ cases be transferred to the Muscogee Nation District Court.
Asked in June how the settlement agreement would affect Freedmen without Indian blood, City of Tulsa communications director Michelle Brooks said the Freedmen citizenship question “was never a central question” in the lawsuit filed by the Muscogee Nation against the city.
“The legal status of descendants of Cherokee and Muscogee Freedmen was not directly at issue in the federal court litigation being settled. As it stands now, the city is subject to prevailing case law. Some Freedmen can also provide evidence of Indian blood quantum, but yes for those who can’t, under the prevailing case law in the Oklahoma Court of Criminal Appeals (e.g. Barkus v. State), which is the superior appellate court to Tulsa’s municipal court,” Brooks wrote in an initial statement before sending a second comment. “For additional context to what I shared below — this is in line with federal law and your particular inquiry regarding Freedmen was never a central question in our lawsuit and was unchanged by the settlement.”
The city’s adherence to the Oklahoma Court of Criminal Appeals decision in Barkus while simultaneously contracting away its rights under another of the court’s recent decisions, O’Brien v. City of Tulsa, has caught the attention of some attorneys. While the city and tribe applied the most direct applicable law about determining Indian status in their settlement agreement, it sets up another potential legal challenge in Oklahoma that could have significant ramifications for federal Indian law.
The Muscogee Nation’s “Justice on the Rez” website is explicitly clear that tribal criminal jurisdiction requires “some degree of Indian blood,” while the City of Tulsa’s FAQ on the settlement agreement avoids clarifying that the agreement does not apply to tribal members without Indian blood. Instead, it implies the opposite.
“I’m Cherokee (or other tribal affiliation) and pulled over in the Muscogee Nation within Tulsa city limits and received a speeding ticket. What does that mean for me?” the City of Tulsa FAQ proposes before answering. “Indian tribes already have criminal jurisdiction over all Indian defendants (including non-member Indians) for crimes occurring in Indian Country. See 25 U.S.C.A. § 1301.2. The City of Tulsa will defer to the Muscogee Nation’s jurisdiction and file such cases in tribal court for prosecution.”
Other effects of ruling on Muscogee law unclear
The Muscogee Nation’s 1979 Constitution includes nine mentions of the phrase “by blood,” meaning Wednesday’s ruling invalidating that language will have other legal effects, although they are not immediately clear.
Provisions designed to be limited by the phrase will become unlimited overnight. For example, it is unclear how the ruling will affect the nation’s requirement that “full” citizens possess a one-quarter blood quantum. If the striking of “by blood” from that provision also removes the blood quantum requirement, it would greatly expand the number of Muscogee citizens eligible to hold political office.
However, Wednesday’s ruling is limited to the issue of Muscogee Freedmen citizenship, and other effects of the removal of the “by-blood” language will have to be determined by the nation’s government. If the one-quarter blood quantum requirement remains in force, Muscogee Freedmen will be eligible for citizenship, but very few will meet the blood quantum requirement to hold political office. That could raise further legal issues since the exclusion of Freedmen from holding office categorically could raise equal protection problems.
View the Muscogee Nation Supreme Court’s Freedmen decision
