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OKMULGEE, Okla. — Rhonda Grayson is used to people asking her the same question: “Why do you fight to regain citizenship into a tribal nation that doesn’t want you?” For Grayson, a Black Creek Freedmen descendant, the answer is simple.

“It’s important to me because it’s my birthright,” Grayson told Muscogee (Creek) Nation District Judge Denette Mouser on Tuesday during the first day of an historic trial.

Grayson, along with fellow Creek Freedmen descendant Jeff Kennedy, are suing the Tribe for denying them citizenship, a right that was guaranteed to all Black Creeks and their descendants after the Tribe and the U.S. Government signed the Creek Treaty of 1866.

Attorney Damario Solomon-Simmons speaks to reporters outside the Muscogee Creek Nation court building after a judge delayed ruling on a lawsuit on December 1, 2022, that demands Black Creek descendants be reinstated into the tribe of their ancestors. (Mike Creef / The Black Wall Street Times)

Tuesday’s hearing marks the beginning of a trial that has been years in the making. Justice for Greenwood attorney Damario Solomon-Simmons, who represents the Black Creek plaintiffs, wants the judge to recognize that the 1866 Treaty was never abrograted, a term meaning abolished. He wants Judge Mouser to rule that Black Creeks, referred to as Creek Freedmen, should be reinstated into the Tribe of their ancestors.

Meanwhile, Muscogee (Creek) Nation Attorney General Geri Wisner represents the Creek Citizenship Board, which denied Grayson’s and Kennedy’s applications multiple times. AG Wisner wants the judge to instead rule that the 1979 MCN Constitution should prevail over the 1866 Treaty.

The newly drafted Constitution created a “by blood” stipulation that effectively removed Black Creeks from being recognized as citizens for the last four decades.

“This is a simple case,” attorney Solomon-Simmons said in his opening statement. “Their citizenship was snatched and stolen unjustly and illegally.”

Expert witness: U.S. Treaties are the supreme law of the land

Like the other four so-called “Civilized Tribes” that adopted kinship slavery and fought for both the Union and the Confederacy during the U.S. Civil War, the Muscogee (Creek) Nation entered into a treaty with the U.S. government in 1866 that, among other things, required them to abolish slavery and to recognize the full citizenship rights of free and formerly enslaved Black Creeks and their descendants in perpetuity.

Oklahoma State University contains a record of the 1866 Treaty. According to federal agreement, Black Creeks “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.”

During Tuesday’s trial hearing, attorney Solomon-Simmons called an expert witness to the stand, University of Oklahoma law professor Carla Pratt, the esteemed Ada Lois Sipuel Fisher Chair in Civil Rights, Race, and Justice in the Law.

Pratt holds decades of experience researching federal Indian law, Constitutional law, and the legal status of Black Freedmen. She was asked whether the 1979 MCN Constitution overrules the centuries-old U.S. treaty.

“A treaty is a government to government document,” Pratt said. She noted a section of the U.S. Constitution which declares only Congress has the power to abrogate a U.S. Treaty, and since Congress had never done that in the case of the 1866 Creek Treaty, Pratt said, it remains the supreme law of the land.

Rhonda Grayson, center, speaks at a press conference for Black Creeks inside the Greenwood Cultural Center in Tulsa, Oklahoma’s Historic Greenwood District on Wednesday, Nov. 30, 2022. Rhonda Grayson and Jeff Kennedy, left, are two plaintiffs in a lawsuit demanding the Muscogee (Creek) Nation honors its 1866 treaty obligations by reinstating citizenship and full rights for descendants of Black Creeks. (The Black Wall Street Times / FB livestream)

Political and racial apartheid in the 21st Century

Notably, the U.S. government established a way to carve out Indian land for White settlement in the late 1800s by creating the Dawes Roll, a list of names that members of the Five Tribes were forced to sign in order to remain recognized as tribal nations.

The racist U.S. government, still believing even a drop of African blood meant you were inferior, established a by-blood roll and a Freedmen roll for each of the Five Tribes. Anyone who even appeared to be of African descent was forced onto those segregated Freedmen rolls.

Today, the Muscogee (Creek) Nation enforces the 1979 Constitution against Black Creeks by denying anyone on the Creek Freedmen roll access to citizenship.

During cross examination of plaintiff Jeff Kennedy, Muscogee (Creek) Nation AG Wisner focused on Kennedy’s lineage, which he traces to a notable ancestor who was placed on the Creek Freedmen roll.

“Were you able to show evidence of a linear descendant on the 1906 by-blood rolls?” MCN AG Wisner asked Kennedy.

“Not directly,” he responded.

Yet in defending the MCN Citizenship Board’s decision to deny his appeal for citizenship, AG Wisner refused to acknowledge the legal supremacy of the 1866 Treaty.

A victory for Black Creeks would be “so exciting”

For 70-year-old Creek Freedmen descendant Paulette Trotman, a victory for Black Creeks would change her entire family.

“I’d be so excited for my family and for all the Creek Freedmen out there,” Trotman told The Black Wall Street Times.

“Your kids need to know that history, and if we get approved those benefits can go towards our families.”

Trotman said her grandkids and great grandkids often ask her why they don’t receive educational and health benefits that non-Black Creeks receive.

“A lot of us (Black Creeks) live under the poverty line, and we need those rights. Any way we can get those kids educated, get healthcare, get all of that from the Creek Nation, that would be wonderful,” Trotman said.

In a tense moment, plaintiff Grayson described her experience when she approached the Citizenship Board seeking to have her rights reinstated.

“It felt like individuals were disgusted by my presence there,” she said describing the hostility she says she faced as the room grew quiet.

Ultimately, she told the judge, she wants the court to recognize her birhthright, not just for her, but for her ancestors and all the Black Creeks who perished without seeing justice.

“I want you to consider the evidence that we have submitted, that our birthright is based on the Treaty of 1866, and that the treaty has not been abrogated,” she said directly to Judge Mouser.

Deon Osborne was born in Minneapolis, MN and raised in Lawton, OK before moving to Norman where he attended the University of Oklahoma. He graduated with a bachelor’s degree in Strategic Media and has...