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Law & Principles

Ray Carter | July 11, 2024

Tribal court decried as farce

Ray Carter

Since the U.S. Supreme Court’s 2020 ruling in McGirt v. Oklahoma declared the Muscogee (Creek) Nation’s historic pre-statehood reservation was never formally disestablished for purposes of federal major-crimes law, Creek tribal leaders have claimed they maintain significant government power over people living in the affected area.

That means anyone living within the historic boundaries of the Muscogee (Creek) Nation’s pre-statehood reservation lines, which includes 4,867 square miles in 11 Oklahoma counties and most of Tulsa, could potentially be subject to the tribe’s authority, depending on the situation.

That has raised numerous jurisdictional concerns, especially since the vast majority of those living in the 11 counties are not citizens of the Muscogee (Creek) Nation.

But during a July 9 press conference, Freedmen descendants—individuals whose ancestors were slaves owned by members of the Muscogee tribe (and often direct descendants as well due to intermarriage)—warned that the situation is even worse than many critics believed.

To a substantial degree, they warn that the Muscogee (Creek) court system is a farce.

Several Freedmen descendants, though a legal challenge making its way through the Muscogee (Creek) court system, say they now find themselves facing last-minute changes in the composition of the Muscogee (Creek) Supreme Court with two new appointments added to stack the deck against the black plaintiffs.

“This is such an affront to the rule of law,” said Damario Solomon-Simmons, lead attorney for several Freedmen descendants seeking tribal membership. “It is such an unbelievable development. In my 20-plus years of practice, I’ve never heard of anything like this. This goes against everything we learned about the law as far as impartiality, as far as due process. It is simply wrong.”

In a September 2023 ruling, Muscogee (Creek) Nation Judge Denette Mouser concluded that Article II of the Creek Treaty of 1866 unequivocally requires that black Creeks be provided all the rights and privileges of native citizens.

The Muscogee (Creek) Nation’s treaty of 1866, signed after the end of the Civil War in which the tribe sided with the Confederacy, ended slavery in the tribe and guaranteed tribal membership to former slaves and their descendants.

But a revised tribal constitution, which took effect in 1979, stripped many Freedmen descendants of their Muscogee (Creek) citizenship. Freedmen descendants argue that the 1979 constitution violated the provisions of the tribe’s 1866 treaty.

Muscogee (Creek) tribal leaders quickly appealed the tribal district judge’s decision, seeking to maintain the exclusion of black Creeks from tribal rolls.

“Chief (David) Hill, after the decision, specifically went to Facebook and said he was going to fight the decision for Creeks of African descent to have full citizenship,” Solomon-Simmons said, “reminding us of George Wallace of Alabama, who said, ‘Segregation today. Segregation tomorrow. Segregation forever.’”

Solomon-Simmons said Hill and other tribal government leaders have since gone to extraordinary—and, he argues, illegal—lengths to stack the deck against black Creeks in the tribal court system.

Solomon-Simmons said Creek leadership chose to pass a new law during an “emergency session,” which allowed them to act without public notification or transparency.

The new law allows tribal leaders to appoint “special judges” to replace justices who recuse from cases.

One of the Muscogee (Creek) Nation Supreme Court justices who recused from the Freedmen case helped draft the 1979 tribal constitution, Solomon-Simmons noted. A second justice also recused from the case.

As a result of the new law, two new special judges will serve only on the Freedmen case. And one of the two special judges appointed to the case, James Jennings, publicly stated that he opposed allowing Freemen descendants to become tribal members when Jennings previously ran for a tribal office.

Solomon-Simmons said the new law was passed in contradiction of the tribal constitution.

“There’s nothing in their (Creek) constitution that allows them to do what they’re doing,” Solomon-Simmons said. “They know this, and yet they still did it.”

Solomon-Simmons noted that the Muscogee (Creek) Nation closed its tribal government offices on July 9 to celebrate “sovereignty day” and the McGirt decision.

“That McGirt decision is based upon what? The treaty of 1866,” Solomon-Simmons said. “So while the Creek Nation wants everyone else to adhere to the treaty of 1866, they didn’t want to adhere to the treaty of 1866.”

He warned that the alleged shenanigans in the case should concern a broad swath of Oklahomans, not just those directly involved in the Freedmen cause.

“This doesn’t just impact our particular … Creek Freedmen case, because the Creek Nation because of McGirt has jurisdiction over much of northeast Oklahoma,” Solomon-Simmons said. “This means that over one million people come underneath, in some form or fashion, Creek Nation jurisdiction. The Creek Nation has the ability to put people in prison. The Creek Nation has the ability to fine people. The Creek Nation has the ability to decide business disputes. This means that anyone who’s going through the Creek Nation Supreme Court or court system could be subject to this type of kangaroo activity.”

As of publication, officials with the Muscogee (Creek) Nation have made no public response to Freemen allegations on any of the tribe’s social-media accounts or the tribal government website, where officials often address major issues and controversies.

The Freedmen case is scheduled to be heard on July 26 by the Muscogee (Creek) Nation Supreme Court.

Photo credit: Justice for Black Creeks livestream, July 10, 2024.

Ray Carter Director, Center for Independent Journalism

Ray Carter

Director, Center for Independent Journalism

Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.

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