Saying it “creates a constitutional crisis,” the Citizenship Board of the Muscogee Nation is asking the Muscogee Nation Supreme Court to reconsider its recent decision that Freedmen descendants must be admitted as tribal citizens and that all of the nation’s “by blood” legal language is void ab initio, or from the beginning.
Filed Monday, the request indicates that Principal Chief David Hill’s administration is exploring avenues to continue excluding Muscogee Freedmen as citizens ahead of this year’s September election.
“The opinion’s created crisis continues with its unauthorized radical, actual physical amendment of the constitution, a clear usurpation of the people’s exclusive political power. The opinion continues its creation of the constitutional crisis by its unnecessary ‘void ab initio’ language, calling into possible question post-constitutional governmental senior office holders and their actions. The opinion unnecessarily further invalidates constitutional and statutory language not an issue before the citizenship board or the district court,” the petition states. “Finally the crisis culminates in its mandate as to cases unknown and unfiled. Rehearing is required to recognize and apply the highest known legal standard applicable to challengers seeking to invalidate a constitutional provision, remedy the opinion’s result of the failure to follow such a standard and by doing so, then avert a constitutional crisis.”
On July 23, the nation’s supreme court ordered the citizenship board to “apply the Treaty of 1866 and issue citizenship to the respondents, and any other future applicant” who is descended from Muscogee Freedmen, people of African descent enslaved by some Muscogee citizens and freed by the treaty. After the Civil War, Muscogee Freedmen and their descendants were granted citizenship in the Muscogee (Creek) Nation, which they continued to hold until the nation rewrote its constitution in 1979.
During the last Muscogee Nation Constitutional Convention in the 1970s, former Principal Chief Claude Cox supported stripping citizenship from Freedmen, arguing the nation’s “Indians” would be outnumbered by “Freedmen” unless membership rules were changed.
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“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 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.”
The movement to strip the descendants of Freedmen was successful, and those without a “Creek by blood” ancestor on the Dawes Rolls were stripped of their tribal citizenship.
Rhonda Grayson and Jeff Kennedy, two descendants of Muscogee Freedmen, sued the nation in tribal court after their citizenship applications were denied. The district court sided with Grayson and Kennedy and found that the Treaty of 1866 required the nation to grant them citizenship. The citizenship board appealed, and the nation’s highest court unanimously affirmed the district court’s order. The justices’ per curium opinion remanded the case back to the citizenship board with instructions to admit individuals with an ancestor on the Creek Freedmen Dawes Roll. Extending the impact of the case beyond the Freedmen citizenship question, the court found any reference to “‘by blood’ citizenship in the 1979 Muscogee (Creek) Nation constitution to be unlawful and void ab initio.”
The term “by blood” appears nine times in the Muscogee Constitution, as well throughout the nation’s code and regulations. The term refers to blood quantum tracked by the U.S. Department of Interior. For members of the Muscogee Nation, blood quantum percentages are calculated based on the listed blood quantum of their lineal ancestors on the Dawes Rolls.
Those rolls were created at the beginning of the 20th century and were influenced by racist attitudes and laws, with some Indians claiming a lower blood quantum to avoid having a guardian appointed. At the same, federal agents enrolled some Freedmen descendants with Indian ancestors as having no Indian blood. Despite issues with the creation of the Dawes Rolls, they allow governments to make definitive determinations of Indian status.
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While several workshops have been scheduled to help Muscogee Freedmen apply for citizenship, it is unclear if the Muscogee Citizenship Board has issued a citizenship card as a result of the court’s recent ruling. After the decision, Hill suggested that a “reconsideration” of the ruling could be requested.
“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.
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If the petition for rehearing is granted and the descendants of Muscogee Freedmen are excluded from citizenship past Sept. 9, the delay would prevent Freedmen from participating in the nation’s 2025 elections.
During a July 24 press conference, attorney Damario Solomon-Simmons said he was “confident” the Muscogee Nation would follow the order and said applications for plaintiffs Kennedy and Grayson were already being processed.
“Our position is the court couldn’t have been more clear. It’s 23 pages of clarity. And at the end of the day, in the conclusion they made an order, and they ordered the citizenship board to enroll Jeff, Rhonda and any other Creek that can show they are a descendant of the Dawes Rolls. We’re confident in that,” Solomon Simmons said. “We would love for the chief to come with us to the citizenship office and give the citizens citizenship cards and shake hands and show leadership. The type of leadership that (Principal Chief) Chuck Hoskin (Jr.) has shown in the Cherokee Nation and say, ‘Hey, I am the chief. I am accepting this. These are my Creek brothers and sisters and we’re moving forward as one family.”
In a footnote of the Muscogee Citizenship Board’s petition for rehearing, the board rejected the notion that the court’s holding made Muscogee Freedmen legally “Indians.”
“The opinion holds that the Treaty of 1866 makes the non-native Freedmen descendants Indians, thereby redefining the generally understood definition of an Indian which is based on descent,” the brief reads. “It does not change the fact that they are not descendants from Creek Indians and therefore are not Indians.”
Asked July 24 whether he had a “contingency plan” if the Muscogee Nation continued to resist the order, Solomon-Simmons indicated he did not think that would happen.
“To be honest with you, we don’t see that they have a path (to deny Freedmen citizenship). Again, we believe in sovereignty, so we can’t imagine our nation going to the federal courts and saying, ‘Overrule our nation’s courts,'” Solomon-Simmons said. “But if we do get to that point, we definitely have a robust legal team, and we will prepare for any contingency, but we hope — we really hope — that that doesn’t come to pass.”
Meanwhile, the citizenship board’s brief hinted that a Muscogee Nation Supreme Court with a different composition might reach a different conclusion.
“Of course, this court could later include a majority of members with legal views different than those in the opinion,” the brief stated.
Regardless of the outcome of the Muscogee Freedmen’s citizenship fight, criminal cases in the City of Tulsa involving Muscogee Freedmen without a “Creek by blood” ancestor on the Dawes Rolls will not be eligible for transfer to Muscogee Nation District Court under a pending settlement agreement between the city and nation. Under that agreement, “Indians” are defined as people with both an Indian blood quantum and tribal citizenship.
Asked whether he was concerned the agreement excludes some Muscogee Freedmen from having their criminal cases heard in tribal court, Solomon-Simmons said it was something his law firm was “going to look at,” but he intended to lay down his legal weapons in favor of discussing legal issues with the Muscogee Nation.
“At this point, the position that we are taking (is) we want to stop all of our litigation,” Solomon-Simmons said. “Our position is this is over. Laying down our quote-unquote weapons and we’re going to the table saying it’s over with.”
While Monday’s filing indicates the dispute is not “over,” Solomon-Simmons did not respond to a request for comment prior to the publication of this article.
Muscogee Nation raises 5 arguments in petition
Attorneys for the Muscogee Nation Citizenship Board — Graydon D. Luthey Jr., R. Trent Shores and Barrett L. Powers — raised five arguments about the July 23 ruling in their petition:
- The decision “ignored the facts and law that establish the existential, retained right of the nation’s citizens in the future to impose requirements for citizenship that preclude people, including Freedmen descendants, from citizenship in the nation”;
- The Muscogee Nation Supreme Court cannot amend the Muscogee Constitution;
- The court’s use of the term “void ab initio” could make every government action since 1979 “legally infirm” or open to challenge;
- Striking the “by blood” language in every instance determines issues not before the court; and
- The court does not have the power to command the citizenship board to take action in future cases.
Attorneys for the nation also reprised their argument that the nation’s Treaty of 1866 with the United States did not grant “perpetual” citizenship to Freedmen and their descendants.
“The question presented in this case is not whether the Freedmen and their descendants enjoyed the rights of native citizens as a result of the treaty, but whether the nation surrendered it the native citizens’ right to impose restrictions on membership in the future by granting perpetual citizenship,” the attorneys wrote. “The opinion identifies nothing in the history or surrounding circumstances under the fourth canon of (Indian treaty) construction establishing beyond a reasonable doubt that the nation had destroyed its right to impose restriction in the future and that the nation understood it had conferred via the treaty perpetual citizenship to the Freedmen and their descendants.”
The brief also argues that the supreme court’s amending of the nation’s constitution was itself unconstitutional.
“The opinion violates those constitutional limitations in expressly amending the constitution by physically striking out a portion of the people’s language in what the opinion labels a ‘correction,'” the attorneys wrote. “Neither the people nor the National Council have acted to adopt such as ‘correction,’ nor did the (U.S.) Department of Interior approve it. The court’s constitutional violation is magnified by the substance of this court’s amendment.”
The “void ab initio” language, and its potentially extensive implications, are also objected to in the petition for rehearing.
“Under the opinion’s conclusion of ‘void ab initio,’ this court implicitly calls into question the results of every election after the adoption of the 1979 Constitution, since the Freedmen did not vote,” the attorneys wrote. “As a result, the opinion renders all acts of the National Council and chiefs potentially open to question.”
Read the board’s petition for rehearingÂ
