OKMULGEE — A Muscogee Nation judge is being asked to consider a motion for summary judgment in a case that could reinstate the tribal citizenship of Muscogee freedmen descendants.
“I want to remind everyone that this is just a hearing on a motion for summary judgment, which is a vehicle to end a case early,” Judge Denette Mouser said at the conclusion of Thursday morning’s two-hour hearing before a nearly full courtroom. “Today’s hearing was not a trial, although I certainly heard elements of trial arguments from both attorneys today.”
The motion at the center of Thursday’s hearing was brought forward as part of a civil suit from Rhonda Grayson and Jeff Kennedy against the Muscogee Nation’s Citizenship Board challenging the board’s decision to deny their applications for tribal citizenship.
Adopted in 1979 via referendum vote and approved by the Department of the Interior, Article III of the Muscogee (Creek) Nation Constitution restricts tribal citizenship eligibility to individuals who are the lineal descendants of Creeks listed on the final rolls compiled by the federal government via the Dawes Commission in the late 19th century and early 20th century.
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However, in 1866, the Muscogee Nation signed a treaty with the United States government that among other provisions, guaranteed full tribal citizenship to the tribe’s slaves and their descendants, as well as to Black Creeks and their descendants.
In 2019, a judge with the U.S. District Court for the District of Columbia dismissed a federal lawsuit from Grayson, Kennedy and several other descendants of individuals listed on the Muscogee freedmen rolls on the grounds that they had not exhausted all possible remedies through the tribal court system.
That dismissal prompted Grayson and Kennedy to reapply for tribal citizenship and, after their applications were again rejected, file a civil suit in Muscogee Nation District Court against the tribe’s Citizenship Board, which is charged with reviewing citizenship applications.
“We were exiled from the tribe in 1979 unlawfully because the Treaty of 1866 is still the supreme law of the land,” Grayson said outside the Muscogee Nation Mound Building after the hearing.
“The Creek Nation argued this in the McGirt case, saying that Article III is good and valid law. How can you skip Article II (guaranteeing citizenship) and go to Article III and say that’s good law, but when it’s applicable to the Freemen … we just avoid that?”
The Cherokee Nation signed a similar treaty that was at issue in litigation before the District Court for the District of Columbia between the tribe and the descendants of its freedmen. That case was resolved in 2017 with the reinstatement of Cherokee freedmen descendants’ tribal citizenship.
The Seminole Nation also signed a comparable treaty that was upheld during disenrollment litigation in the early 2000s. The tribe’s attempts to remove freedmen descendants led to the temporary suspension of its federal recognition.
Representing the Muscogee Nation’s Citizenship Board, Muscogee Nation Attorney General Geri Wisner said in an emailed statement that the board’s decision to deny Grayson’s and Kennedy’s citizenship applications was consistent with the tribe’s constitution.
“It is clear that the Citizenship Board followed the law in denying plaintiffs’ applications for citizenship. The Muscogee (Creek) Constitution sets forth clear standards that make no provision for extending citizenship to non-Creek individuals,” she said.
Mouser did not provide a timeline for when she would rule on the motion. Kennedy and Grayson’s civil suit is currently scheduled to go to a jury trial in April.
Freedmen descendant Elouise Smith is among the people watching the case’s outcome closely. Now a resident of Las Vegas, the 91-year-old woman was a citizen of the Muscogee Nation prior to the 1979 amendment and was at the courthouse Thursday morning for the hearing.
“It’s a miracle for me to be here today and be able to understand what’s going on in court,” Smith said. “I’m looking forward to getting my citizenship returned. My grandfather spoke about it from the time I was a little girl until he died. I’m here in his place.”
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