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After attorneys for Black Creek plaintiffs and the Muscogee (Creek) Nation Citizenship Board defense team rested their case in a historic trial on Wednesday, citizenship rights for Black Creeks comes down to a ruling from the Muscogee (Creek) Nation District Judge.
After days of tense arguments in a trial that began on Tuesday and ended Wednesday–a trial Black Creeks have been awaiting for over 43 years–Muscogee (Creek) Nation District Judge Denette Mouser said she would make a ruling on the case “as quickly as possible.”
“I want to get this decided quickly so that everyone can move on from this,” Judge Mouser said before adjourning the trial.
Black Creeks, referred to as Creek Freedmen, have enjoyed federally recognized citizenship rights in the Muscogee (Creek) Nation since 1866, when a U.S. treaty required the tribe to abolish slavery and give full rights to their Black relatives, both free and formerly enslaved Black Creeks who have been part of the tribe for centuries. They were excluded from the tribal nation in 1979, when a newly drafted constitution implemented a “by-blood” provision.
The judge is tasked with deciding a question that has widespread ramifications for the tribal nation: Should the Muscogee (Creek) Nation follow the Creek Treaty of 1866, considered by the federal government as supreme law of the land, or should the Creek Nation follow the 1979 Muscogee Constitution “by-blood” citizenship provision.
Out of the “Five Civilized Tribes” who practiced slavery, only the Cherokee Nation has recognized full citizenship rights for their Freedmen relatives. The Seminole Nation continues to discriminate against their Freedmen, while the Choctaw and Chickasaw Nations do not recognize their Freedmen at all.
“This is a simple case,” attorney Damario Solomon-Simmons said during opening statements on Tuesday. “The Treaty of 1866 has not been abrogated.”
First day of trial in Muscogee (Creek) Nation Court
For over two years, a lawsuit against the Muscogee (Creek) Nation, brought by Black Creek plaintiffs Rhonda Grayson and Jeff Kennedy, has been sitting on the court docket collecting dust. This week, the long-awaited trial commenced.
On the first day of trial on Tuesday, plaintiffs explained why they are fighting to regain citizenship into a tribe that seemingly doesn’t want them.
“It’s important to me because it’s my birthright,” Grayson told Judge Mouser on Tuesday.
Representing the plaintiffs, Justice for Greenwood attorney Solomon-Simmons examined an expert witness, OU Law Professor Carla Pratt, who testified that the 1866 Treaty takes precedent over any conflicts in the 1979 MCN Constitution.
Meanwhile, MCN Attorney General Geri Wisner and her staff represented the MCN Citizenship Board, which denied Grayson and Kennedy citizenship based on their ancestors being traced to the segregated Freedmen roll instead of the Creek by-blood roll.
The courtroom was filled with elderly Black Creeks and their supporters on one side, along with the MCN Citizenship Board members and their supporters on the other side. At one point on Tuesday, the room grew deathly silent as plaintiff Grayson recounted her experience appealing her denial in front of the Board.
“It felt like individuals were disgusted by my presence there,” Grayson said.
Meanwhile, Muscogee (Creek) Nation AG Wisner ignored the treaty as much as possible during her questioning. She instead sought to keep the judge focused on the “by-blood” provision of the 1979 Constitution.
“Were you able to show evidence of a linear descendant on the 1906 by-blood rolls?” MCN AG Wisner asked both Grayson and Kennedy throughout the trial, to which they responded, “not directly.”
Second day of trial
Attorney Damario Solomon-Simmons, on the second day of trial, sought to keep the judge focused on the fact that he’s well aware of the by-blood provision in the Constitution, but that it should be superceded by the centuries-old Creek Treaty of 1866, which the United States Constitution considers “supreme law of the land.”
Notably, Solomon-Simmons called members of the Citizenship Board to the stand. In a series of tense moments, Solomon-Simmons examined Citizenship Board Director Nathan Wilson.
Wilson holds 15 years of experience in enrolling and assisting in the enrollment of citizens into the Muscogee (Creek) Nation. Solomon-Simmons asked him if he’d received guidance from the MCN attorney general to ignore the 1866 Treaty when processing Creek Freedmen applications.
He testified that he’d “reached out to the AG’s office for clarification” and was told to ignore the treaty, which states:
“We don’t go by the Treaty of 1866”
Solomon-Simmons highlighted the fact that while the U.S. government forced anyone who even appeared to be of African descent on the Creek Freedmen rolls, both the Freedmen roll and the by-blood roll are considered part of the final rolls established by the Dawes Commission. Wilson admitted that he would’ve processed Freedmen applications if the AG’s office had instructed him to do so.
In examining Citizenship Board member Leann Nicks, Solomon-Simmons highlighted the blatant racial and political discrimination at play.
“We don’t go by the Treaty of 1866,” Nicks testified. “We don’t consider this law.”
“So, you just chose not to follow this law?” Solomon-Simmons asked.
During closing statements on Wednesday, Muscogee (Creek) Nation Attorney General Geri Wisner argued that tribal sovereignty allows the nation to amend their citizenship requirements. She argued that the plaintiffs failed to show a blood ancestor, and therefore their citizenship denial shouldn’t be overturned.
Meanwhile, attorney Solomon-Simmons argued that not only does the 1866 Treaty overrule the by-blood provision of the 1979 Constitution, but he also claimed that ignoring parts of the Treaty when dealing with Black Creeks leaves the door open for the state of Oklahoma and other government entities to ignore other parts of the treaty that affirm the nation’s tribal sovereignty.
“If anyone can just unilaterally decide we don’t want to follow that treaty law, what’s going to stop the state of Oklahoma doing that, the United States of America, which is notorious for doing that, or any of these other jurisdictions?” Solomon-Simmons told The Black Wall Street Times after the trial. “It’s going to provide them a weaponized decision they can utilize right against the Creek Nation.”
What’s next for Black Creeks seeking reinstatement into the Muscogee (Creek) Nation?
The Muscogee (Creek) Nation successfully used the 1866 treaty to affirm the existence of their political jurisdiction over their reservation in the 2020 McGirt v. Oklahoma U.S. Supreme Court case. Yet the tribal nation continues to ignore Article II of that same treating by denying citizenship to Black Creeks and their descendants.
“Unlawful acts, performed long enough and with sufficient vigor, are never
enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right,” the Justices wrote in the McGirt decision.
The decision now rests in the hands of Judge Mouser.
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