The Muscogee Nation Supreme Court denied a motion to hold a rehearing on the court’s July 23 order that requires the Muscogee Nation Citizenship Board to enroll descendants of Muscogee Freedmen as tribal citizens. The denial appears to end the marathon legal case of Rhonda Grayson and Jeff Kennedy, two descendants of Muscogee Freedmen who sued for tribal citizenship.
“The [Muscogee Nation Citizenship Board]’s disagreement with the court’s final decision is not sufficient to establish grounds for rehearing under rule 24 (B),” the court wrote several times throughout the opinion.
Grayson and 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.
Last month, the Muscogee Nation Supreme Court issued a landmark ruling requiring the nation to extend tribal citizenship to Muscogee Freedmen under the Treaty of 1866, regardless of whether they have an Indian blood quantum. The citizenship board petitioned for a rehearing, which was denied today.
The order rejected each of the citizenship board’s arguments in favor of a rehearing, finding:
- “that reference to descendants in the treaty is the linchpin, or, as the appellant phrases it, the ‘word of perpetuity‘ that prohibits the nation from subsequently excluding Creek Freedmen descendants from citizenship”;
- “that absent abrogation, the terms of a valid treaty must be followed, even by the Muscogee Nation Constitution”;
- “the ‘by blood’ language in Article III, Section 2 of the nation’s constitution must be found void ab initio in order to (1) bring the constitution into compliance with the Treaty of 1866 with as little interference from this court as possible, and (2) to protect all that remains in this constitution,”;
- “the court’s order and opinion clearly does not extend to issues related to blood quantum, or requirements for public office, or any other issue(s) not before this court on appeal,”; and
- “it is entirely within reason for this court to direct the parties to apply the precedent set by this case to future similarly situated citizenship applications.”
Asked to confirm whether any Freedman descendent had been issued tribal citizenship as a result of the ruling last month, Muscogee Nation Press Secretary Jason Salsman did not answer the question Wednesday, but he did comment on the new order denying a rehearing.
“We are reviewing the court’s decision, but it does not appear to provide the clarity our nation needed,” Salsman said. “We will move forward thoughtfully, exploring all options to ensure we remain within the law and in accordance with our constitution.”
With the petition for rehearing denied, there does not appear to be a clear legal justification for the nation to delay the issuance of citizenship to descendants of Muscogee Freedmen who can trace an ancestor to the Dawes Rolls. With the tribe’s deadline to register to vote in the 2025 Muscogee Nation elections set for Sept. 9, it remains unclear whether any Muscogee Freedmen will be enrolled in time to register.
In a press release, attorney Damario Solomon-Simmons praised the order and said he would file to have the court enforce the order if the nation did issue citizenship cards “immediately” to the plaintiffs.
“The law is settled. Article II governs, the ‘by blood’ restriction is void, and it is time to implement — not obstruct. Citizenship cards must be issued immediately,” Solomon-Simmons said. “Any delay or noncompliance will result in us seeking immediate enforcement from the Muscogee (Creek) Nation Supreme Court.”
Freedmen citizenship victory leaves other legal questions
While the descendants of Muscogee Freedmen are on track to be recognized as tribal citizens, other legal hurdles to recognition as Indians continue to persist. When federal and state courts determine Indian status for the purposes of criminal jurisdiction, tribal citizenship is not the only factor they consider.
Since the 1840s, federal courts have required “Indian blood” for defendants to be considered “Indian” in the eyes of a court during criminal proceedings. While most tribal citizens have an Indian blood quantum, the descendants of some Cherokee Freedmen who are tribal citizens — and now some Muscogee Freedmen — do not. Two U.S. Supreme Court cases from 1896 instruct federal courts to have no presumption on whether Freedmen are Indians.
Today, federal courts are left following these century-old cases and cannot presume Freedmen are Indian or non-Indian. Instead, they must apply the 1846 Rogers test individually to each defendant and make a determination on whether they possess “Indian blood” when determining criminal jurisdiction. The Oklahoma Court of Criminal Appeals has also incorporated the test into state law, finding in the 2024 case Barkus v. State that the state had criminal jurisdiction over a Seminole Nation citizen with a blood quantum of “0/0.”
Removing the judicially created test would likely require the U.S. Supreme Court to overturn the Rogers case or Congress to define the term “Indian” legislatively for criminal jurisdiction purposes. Neither option appears likely in the near future, although Cherokee Nation Principal Chief Chuck Hoskin Jr. has advocated such a change.
“This effort (…) is to get Congress to make a really narrow change in the law or to find the appropriate case to go up through the courts and maybe advocate for a court to say, ‘Blood quantum is not really a test or a prong that is relevant and we shouldn’t apply it,’” Hoskin said last year.
The exclusion of some tribal citizens from the category of “Indians” further complicates the jurisdictional landscape of Oklahoma after the McGirt decision. If approved by a federal judge, the recent settlement agreement between the Muscogee Nation and the City of Tulsa would enshrine the current federal definition of Indian in its language, excluding some Freedmen from having their cases heard in tribal court.
Asked his thoughts on how the settlement agreement handled criminal cases involving Freedmen, Gov. Kevin Stitt criticized the exclusion Tuesday.
“So now we’re treating a Black person different than (my brother) Keith Stitt, and that’s what I fundamentally have a problem with,” Stitt said. “This is America, we’re all created equal, and the fact that people are trying to divide us based on race, I just find that appalling, disappointing. I just don’t know why more people don’t see it the way I do.”
While his brother is asking the U.S. Supreme Court to hear his appeal of a state court decision and affirm that municipalities have no authority to adjudicate crimes against tribal citizens within Indian Country, Stitt also suggested that the U.S. Supreme Court should clarify the definition of “Indian.”
“The thing that the Supreme Court needs to do is give us clarification. What does it mean to be an Indian? How much Indian do you have to be? Are you going to keep separating people based on race?” Stitt asked. “If you’re a Black person or Hispanic or an Asian or a white person, there’s a different set of rules for you than if you are an American Indian or have a percentage of blood in you — American Indian. So that’s the thing that I think most Americans are just kind of scratching their head just thinking, ‘This is weird.’ And of course, I do, and I’m Indian. How can you give me different punishment than you can a single mom of another race?”
