The fate of the citizenship of two descendants of Muscogee Freedmen, the people formerly enslaved by the tribal nation, is now in a Muscogee Nation’s judge’s hands.
Two Freedmen Descendants got their first day in Muscogee Nation Court earlier this week. Rhonda Grayson and Jeff Kennedy appeared with their legal team, which included Damario Solomon Simmons, over the course of a two-day trial. Both plaintiffs are seeking citizenship into the tribal nation nearly three years after filing their case.
After the first day of trial concluded, about a dozen supporters waited for Grayson and Kennedy to exit the courtroom.
"Justice for Black Creeks!" shouted supporters as the plaintiffs and their legal team exited the building.
Both Grayson and Kennedy are part of a group called the Muscogee Creek Indian Freedmen Band, which is working to get citizenship for all Muscogee Freedmen descendants.
Many Freedmen lost their citizenship after the Muscogee Nation's 1979 constitution stated that to be considered for tribal membership, you must be a by-blood descendant of someone on the Dawes rolls.
Ron Graham is a Muscogee Freedmen descendant and is part of the Muscogee Creek Indian Freedmen Band. He sought citizenship more than 18 years ago and was denied.
According to Muscogee Nation documents, Graham applied for citizenship in 2002. Over the next 18 years, Graham appealed and eventually exhausted all remedies within Muscogee Nation court. His case also culminated in a multi-day trial and was denied citizenship.
"We can take the case now to the federal level outside the (Creek) Nation," Graham told Mvskoke Media in 2021. “And that is one of the things we are contemplating on doing.”
Ultimately, though, Graham thinks the matter should be worked out in tribal court, in Okmulgee.
"We are family. Freedman by blood doesn't matter. We're one," Graham told KOSU during a break in the trial.
1866 treaty at the heart of Freedmen argument
Attorneys for Grayson and Kennedy argue they should be citizens because of an 1866 treaty Muscogee Nation signed with the federal government. They argue the nation's 1979 constitution needs to reflect that.
They say the 1866 reconstruction treaty Muscogee Nation signed after the civil war was never repealed and is still law. The attorneys also claim that Article II of that treaty states that Freedmen allows citizenship into the tribal nation:
“…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.”
Muscogee Nation attorney general Geri Wisner said that the citizenship review board followed the laws of the tribal nation when denying Grayson and Kennedy.
"It is through the authority of the Muscogee (Creek) Nation constitution and hopes that the plaintiffs in this case rightfully bring this appeal before the Muscogee (Creek) Nation District courts by following the appellate procedures outlined in the Muscogee (Creek) Nation Constitution and Codes," said Wisner in her opening statements.
"Improper focus, however, after following the legal prescriptions for citizenship processes and procedures, is that the plaintiffs now challenged the same constitution as unlawful for denying them citizenship," Wisner concluded.
At the end of the first day of trial, Muscogee Nation sent out an official statement to the media:
"The right to request a court review of administrative decisions is an example of the transparency and accountability of our agencies. The straightforward question before the Muscogee (Creek) Nation District Court today was whether the Citizenship Board followed the tribal law when considering the plaintiffs' citizenship applications. We believe the Board acted lawfully. The federally approved Muscogee (Creek) Nation Constitution makes no provision for extending citizenship to any non-Creek individual."
Grayson and Kennedy take the stand to lay out family history
Grayson and Kennedy say they are eligible.
"I feel like my citizenship is on the line," Kennedy said as he took the witness stand.
Kennedy read details from his citizenship packet on the stand as he explained who his ancestors were and their connection to the Muscogee Nation. Kennedy did his own genealogy before submitting it to the citizenship board
Kennedy pointed to his great-grandfather Ben Grayson, a Muscogee Freedmen who was listed on the Dawes rolls.
Still, he received a denial letter from Muscogee Nation's citizenship board. He wrote a letter and read it at his hearing before the citizenship board.
"I feel the importance of my family's history. I just want to show them that we've always been in service to this nation other than the house of or the wars we fought in the Civil War," Kennedy told the court.
Grayson also took the stand on the first day of the trial. She told Judge Denette Mouser about America Cohee, her great-grandmother. She currently chairs the Muscogee Creek Freedmen Band and helps put on events and offers language classes.
Even though the trial is one to merely determine if the citizenship board followed the rules when they denied Grayson and Kennedy citizenship, the case is getting a lot of attention because the Freedmens’ legal team makes mention of the 1866 treaty. They called University of Oklahoma Law Professor Carla Pratt as an expert witness.
She told the judge that the U.S. Department of the Interior, who is charged with approving the Muscogee Nation's constitution, erred when they allowed the 1979 constitution to take effect because it was out of line with the treaty language.
"The Treaty of 1866, again, is the supreme law of the land pursuant to Section six of the US Constitution," Pratt told Judge Mouser. "The U.S. Supreme Court has, as recently as the McGirt decision, recognized the Treaty of 1866 is a valid and the treaty that has not been abrogated."
Wisner said code has supremacy and that the constitution was authorized, and that the Oklahoma Indian Welfare Act gave tribes the ability to write their own constitution. That's what they followed, and that's why they maintain that the citizenship board made the right decision.
It's not clear what will happen next, but the case could end up in front of a federal court, as the Cherokee Freedmen case did. During closing arguments, Solomon Simmons again brought up the 1866 treaty and said that it should be a relevant law that the citizenship board should consult. The citizenship board stated that they followed the Muscogee Nation's 1979 constitution.
