Part 1 of 2

Saying it “creates a constitutional crisis,” the Citizenship Board of the Muscogee Nation is asking the Muscogee Nation Supreme Court to reconsider its recent decision that Freedmen descendants must be admitted as tribal citizens and that all of the nation’s “by blood” legal language is void ab initio, or from the beginning.

Filed Monday, the request indicates that Principal Chief David Hill’s administration is exploring avenues to continue excluding Muscogee Freedmen as citizens ahead of this year’s September election.

“The opinion’s created crisis continues with its unauthorized radical, actual physical amendment of the constitution, a clear usurpation of the people’s exclusive political power. The opinion continues its creation of the constitutional crisis by its unnecessary ‘void ab initio’ language, calling into possible question post-constitutional governmental senior office holders and their actions. The opinion unnecessarily further invalidates constitutional and statutory language not an issue before the citizenship board or the district court,” the petition states. “Finally the crisis culminates in its mandate as to cases unknown and unfiled. Rehearing is required to recognize and apply the highest known legal standard applicable to challengers seeking to invalidate a constitutional provision, remedy the opinion’s result of the failure to follow such a standard and by doing so, then avert a constitutional crisis.” On July 23, the nation’s supreme court ordered the citizenship board to “apply the Treaty of 1866 and issue citizenship to the respondents, and any other future applicant” who is descended from Muscogee Freedmen, people of African descent enslaved by some Muscogee citizens and freed by the treaty. After the Civil War, Muscogee Freedmen and their descendants were granted citizenship in the Muscogee (Creek) Nation, which they continued to hold until the nation rewrote its constitution in 1979.

During the last Muscogee Nation Constitutional Convention in the 1970s, former Principal Chief Claude Cox supported stripping citizenship from Freedmen, arguing the nation’s “Indians” would be outnumbered by “Freedmen” unless membership rules were changed.

“That is what we’re fighting for – blood quantum – trying to fight back and get the people in control because under the old constitution – the 1867 constitution – you’ve lost before you started,” Cox said during the convention. “There were three Freedmen bands that would outnumber you today as citizens. So if we want to keep the Indian in control, we need to take a look at this thing and get us a constitution that will keep the Creek Indian in control.”

The movement to strip the descendants of Freedmen was successful, and those without a “Creek by blood” ancestor on the Dawes Rolls were stripped of their tribal citizenship.

Rhonda Grayson and Jeff Kennedy, two descendants of Muscogee Freedmen, sued the nation in tribal court after their citizenship applications were denied. The district court sided with Grayson and Kennedy and found that the Treaty of 1866 required the nation to grant them citizenship. The citizenship board appealed, and the nation’s highest court unanimously affirmed the district court’s order. The justices’ per curium opinion remanded the case back to the citizenship board with instructions to admit individuals with an ancestor on the Creek Freedmen Dawes Roll. Extending the impact of the case beyond the Freedmen citizenship question, the court found any reference to “‘by blood’ citizenship in the 1979 Muscogee (Creek) Nation constitution to be unlawful and void ab initio.”

The term “by blood” appears nine times in the Muscogee Constitution, as well throughout the nation’s code and regulations. The term refers to blood quantum tracked by the U.S. Department of Interior. For members of the Muscogee Nation, blood quantum percentages are calculated based on the listed blood quantum of their lineal ancestors on the Dawes Rolls.

Those rolls were created at the beginning of the 20th century and were influenced by racist attitudes and laws, with some Indians claiming a lower blood quantum to avoid having a guardian appointed. At the same, federal agents enrolled some Freedmen descendants with Indian ancestors as having no Indian blood. Despite issues with the creation of the Dawes Rolls, they allow governments to make definitive determinations of Indian status.

– See next Wednesday’s edition for Part 2.