IN THE MUSCOGEE (CREEK) NATION SUPREME COURT

SUPREME COURT

FILED

IN THE MUSCOGEE (CREEK) NATION SUPREME COURT

CITIZENSHIP BOARD OF THE ) AUG 0 4 2025

MUSCOGEE (CREEK) NATION, ) CONNIE DEARMAN

) MUSGCOGEE (CREEK) NATION

Appellant, ) COURT CLERK

) Case No.: SC-2023-10

V. ) (District Court Case No.: CV-2020-34)

)

RHONDA K. GRAYSON and )

JEFFERY D. KENNEDY, )

)

Respondents. )

APPELLANT’S PETITION FOR REHEARING

Graydon D. Luthey, Jr., OBA # 5568; MCNBA # 1293

R. Trent Shores, OBA # 19705; MCNBA # 1082

Barrett L. Powers, OBA # 32485, MCNBA # 1306

GABLEGOTWALS

110 N Elgin Avenue, Suite 200

Tulsa, Oklahoma 74120

Telephone: (918) 595-4800

Facsimile: (918) 595-4990

Email: dluthey@gablelaw.com

tshores@gablelaw.com

bpowers@gablelaw.com

Attorneys for Appellant

Citizenship Board of the Muscogee (Creek) Nation

INTRODUCTION

I.

II.

Il.

IV.

CONCLUSION

TABLE OF CONTENTS

REHEARING IS REQUIRED BECAUSE THE OPINION IGNORED THE

FACTS AND LAW THAT ESTABLISH THE EXISTENTIAL, RETAINED

RIGHT OF THE NATION’S CITIZENS IN THE FUTURE TO IMPOSE

REQUIREMENTS FOR CITIZENSHIP THAT PRECLUDE PEOPLE,

INCLUDING FREEDMEN DESCENDANTS, FROM CITIZENSHIP IN THE

NATION .... cc cccsceceesscscssesecsesscsessscsessesesaesecassaesecsesacsessavsesasenesesasseeseeaseaesesaseateesseeeseees

THE OPINION VIOLATES THE CONSTITUTION BY PHYSICALLY

AMENDING THE CONSTITUTION... cc eceesssseeseesceseeeccesceacecsseeeeesereseeseeeeesnees

THE OPINION’S UNNECESSARY DETERMINATION THAT THE

CONSTITUTION’S MEMBERSHIP REQUIREMENT WAS “VOID AB

INITIO” RENDERS THE NATION’S GOVERNMENTAL OPERATIONS

SINCE ADOPTION OF THE 1979 CONSTITUTION LEGALLY INFIRM............

THE OPINION’S INVALIDATION OF ALL CONSTITUTIONAL,

STATUTORY AND REGULATORY PROVISIONS USING “BLOOD”

REFERENCE DETERMINES ISSUES NOT BEFORE THE CITIZENSHIP

BOARD, THE DISTRICT COURT, OR THE COURT IN THIS APPEAL..............

THE OPINION’S COMMAND FOR ADMINISTRATIVE ACTION IN NON-

EXISTENT CASES, AND AS TO WHICH RELIEF IS NOT PRESENTLY

SOUGHT IN THIS COURT, IS BEYOND THIS COURT’S JURISDICTION .......

eee eee eee eee er ee eee eee ee er eee Sere ee eee Cece ere rer rer err re rer rer rer eer rer reer errerer errr errr rrr rr ere rry

Cae meee emo eee renee e renee Dene ress ere Ree DEE EEE DEH OFON EEE EOS OED ES OOO DES OEE SESE OOOO ESOS DE DES SOE DESDE SEDER DEE DEEREEES

Cases:

TABLE OF AUTHORITIES

Choctaw Nation v. United States,

318 U.S. 423 (1943)... eescssscssscsesesessecsssessecessscesecessscsessesssscsssesssseessessssssscsessesenecs 6

Connecticut Nat. Bank v. Germain,

503 U.S. 249 (1992)... ..ccccccccsssccssscccesssccssssecsssecesssecsssscsssesscsssssceseseecsscesssssesssessses 7

Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008)... csesecsceseeeeesseseescesseesessesseeseesecsesneesesececssesesseceecesesseesees 13

Horne v. Caughlin,

191 F.3d 244 (2nd Cir. 1999)... eseseecesestsesetceseeseseeseeseseeessesecesesssssseneeeesaes 13

Inre: Effect of Cherokee Nation v. Nash and Vann v. Zinke, District Court for the

District of Columbia,

Case No. 13-01313 (TFH) oc. eecesssesesssesesssesescsseesecseseeesesessesessesseesessecesseeeaees 17

Lone Wolf v. Hitchcock,

187 U.S. 553 (1903)... eecsccsccssceceeseeseecesstesecsessceseesesseseessessesaeseseseeesesasssssaseseensees 5

Local 514 Transport Workers Union of America v. Keating,

2003 OK 110, 83 P.3d 835.0... eecsescecessseseessesceseeseessesseseeessscesseesesreseeseeeesseeseens 2

McGirt v. Oklahoma,

591 U.S. _, 140 S. Ct. 2452, 207 L.Ed.2d 895 (2020)........ccescessssesssessesseceseeeeeees 2

Oliver v. Muscogee (Creek) National Council,

SC-06-04 (Muscogee (Creek) 2006)........ccccscescssssscteessesssesesseseeseeseeseees 10, 14, 17

PDK Lab’ys Inc. v. DEA,

362 F.3d 786 (D.C. Cir. 2004) occ cccesccssssecssessssesssescsssesscssecsssecsessseessensensenseeees 13

Santa Clara Pueblo v. Martinez,

436 US. 49 (1978)... eccccssessscessccessscsseccessecsasesscesseessescssescsesscsusensssensusessasseasnes 5,6

Union Pac. R.R. Co. v. US,

99 U.S. 700 (1878)... ccscsscesscssceesccessscessceseeecseeeseecssesessessesessecsescaseesssesesssecsesersuss 2

U.S. v. Stewart,

311 US. 60 (1940) oe eeescceseseeseeesseccsescssscsssceseceseceesssccsseceusseesesseessesseseseeeeass 9

West Coast Hotel Co. v. Parrish,

300 U.S. 379 (1937)... ..cccsccessccssccsssessseesssecssecesseseseesssensescsssscssesescessceenseesseserssees 11

ii

Statutes and Codes:

14 Stat. 785 (1866 Treaty with the Creeks) ........ccecccessscsssesssesscessessccsecseeesssseseseeees passim

16 OVS. § 40 cece ctscsecsseseesesscenseseesesacsesseesseaesceseeessseaeeaseseesssseasessessaeeaeaseeseeeseeaseasenees 6

25 U.S.C. § 5201(Oklahoma Indian Welfare Act)............cccscesscestesseessestcessecseceeeseeeses 10, 18

25 U.S.C. § 52038 .cessesesssscsesscccsesssessesseesseeessesececsesecseeesseeesseseesseeceseueneeseeessseseeseensasseses 10

M(C)NCA Title 7 § 1-102 oo eee sssesesecseseeesseeseesscescsaeescessseessseesesesseseeseeesseeseeasees 10

M(C)NCA Title 7 § 4-110 oe cesscectsecescesesesesecseeessceecsseerseeeesrscseseseesssssesessesseasees 16

M(C)NCA Title 26 § 3-205 ooo. ceeseseeseeeeseseeecscesscseeessceaceeseseesenesceessesesaesessesseesseseees 15

Other Authorities:

Muscogee (Creek) Nation Constitution ............ccccsccscssssscessesscsscsscssecseesssscssecsecseeneesees passim

R.L. Trosper 1976 Native American Boundary Maintenance: The Flathead Reservation,

Montana 1860-1970, Ethnicity (1976) Vol. 3, 256-274, cited in Russell Thornton,

Population Research and Policy Review, Vol. 16, pp. 33-42 (1997). ...c.ccsesssesesssseesseesees 5

ill

The Muscogee Supreme Court’s Opinion damaged the sovereignty of the Muscogee

Nation. The Opinion rejected the will of the People when it cancelled the Nation’s fundamental

right to define citizenship. This Court rewrote the Constitution. The Court had no authority to do

so. The People did not vote for this rewriting.

INTRODUCTION

The Nation’s Constitution springs from its People — not from the Court. The Constitution

binds the Nation together. Through it, and it alone, the People breathe life into the Nation’s

government. The Constitution defines its citizens. The Constitution describes the powers of the

People and the limits of the government. The People did not give their Courts the power to rewrite

the Constitution.

The Opinion creates potential challenges to all elections, laws, and judicial orders since

1979. Likewise, it cancels the People’s requirement for a % blood quantum for their National

Council, Chiefs, Justices, and Judges.

Rehearing must be granted so this Court can cure its legal errors and restore the entire

Constitution created by the People in 1979. The law requires that result and the People deserve it.

The Opinion requires rehearing and vacation for multiple reasons. Prior to enactment of

the 1866 Treaty the Nation’s citizens possessed the existential right to determine citizenship

requirements. The Nation’s citizens retained that right in making the 1866 Treaty unless expressly

surrendered. The plaintiffs’ claim perpetual citizenship cancelling the Nation’s constitutional

citizenship requirement. That claim can succeed only if the Nation in the 1866 Treaty expressly

surrendered their existing right in the future to impose citizenship requirements that the plaintiffs

do not meet.

The Opinion’s invocation of McGirt v. Oklahoma, 591 U.S._, 140 S. Ct. 2452, 207 L.Ed.2d

895 (2020), has no impact on the appellate issue here. There can be no confusion as to the fact that

McGirt does not require the invalidation of the Constitution’s citizenship requirement. McGirt did

not involve or address the section of the 1866 Treaty concerning Freedmen. McGirt did not define

or limit the rights of native citizens. McGirt did not suggest, much less hold, that the rights of

native citizens failed to include the right to change in the future the requirements for citizenship.

Rehearing and reversal of the District Court will neither violate McGirt’s language nor

have a negative impact on McGirt’s application. Victory here for the Citizenship Board will not

unwind McGirt’s victory for the Nation. Rather, McGirt breathed fresh life into tribal sovereignty

by strictly reading the 1866 Treaty in favor of the Nation. The Court here can and should follow

the McGirt approach, strictly reading the Treaty in favor of the Nation to continue to protect that

sovereignty advanced by McGirt.

The Opinion omits to identify and apply the extraordinarily high legal burden that must be

met to cancel the Constitution’s citizenship provision. When it comes to citizenship, the National

Council has clearly recognized the Constitution as the supreme law of the land. The Citizenship

Board does not have the burden of establishing validity of the Constitution. Rather, the plaintiffs

have the burden of establishing invalidity under the highest standard in the law. It is longheld as a matter of general law that “every possible presumption is in favor of the validity of a

statute, and that continues until the contrary is shown to be invalid beyond a rational doubt.”

Union Pac. R.R. Co. v. U.S., 99 U.S. 700, 718 (1878). (Emphasis added). Accordingly, the party

challenging the statute bears the burden of meeting the standard. A statute is constitutional and

should be sustained against challenge when it is possible to do so. Without question, this

“controlling rule applies equally to constitutional provisions as well as statutory enactments.”

Local 514 Transport Workers Union of America v. Keating, 2003 OK 110, J 15, 83 P.3d 835, 839.

As shown in the balance of this Petition,' the Opinion fails to satisfy that heavy burden for

cancellation of M(C)N Const. Art. III, Sec. 2. If the Opinion had recognized and then applied that

undisputable United States Supreme Court decisional law, the Citizenship Board would have

prevailed and the Nation’s sovereignty would have been upheld.

The Opinion fails to apply the controlling fact, material to deciding that decisive question,

that the express language of the 1866 Treaty contains no perpetual language expressly surrendering

the Nation’s preexisting right to determine citizenship. If the Opinion had acknowledged that fact

as such and then properly applied the legal requirements for cancellation of presumption of

validity and of the challenger showing invalidity beyond a reasonable doubt, the Citizenship

Board’s decisions should have been affirmed.

Rehearing is also required because the Opinion literally rewrites the 1979 Constitution’s

membership requirement to change its clear substance. By so doing, the Opinion violates the

constitutional provision committing the adoption and amendment of the Constitution solely to the

Nation’s People.

Rehearing is further required for the separate and additional purpose of avoiding the

constitutional crisis created by the Opinion’s unnecessary language of “void ab initio” as to the

constitutional citizenship provision. By using that phrase, the Opinion potentially calls into

question all of the Nation’s post-adoption elections and all acts of elected and appointed officers,

and their appointments, including Justices.

Rehearing is additionally required for the separate and additional purpose of correcting the

Opinion’s unnecessary “void ab initio” invalidation of unidentified and unlitigated constitutional,

' The Opinion not only omits the applicable legal standard for constitutional cancellation, a

showing of invalidity of beyond a reasonable doubt, it identifies no standard at all.

statutory, and regulatory provisions based on “blood.” Such provisions would likely include the

minimum '4 blood quantum constitutional and statutory requirement for National Council

Members, Chiefs, Deputy Chiefs, Justices of this Court, and the District Judge. Those provisions,

which were not before the Citizenship Board and were not mentioned in the District Court order,

are unnecessary for review of the applications and therefore cannot lawfully be cancelled in this

appeal.

Rehearing is finally required to correct the Opinion’s unauthorized command to the

Citizenship Board to decide non-existent future cases in a specific way.? No constitutional or

statutory authority is cited in the Opinion to legally justify such a mandate as to unfiled cases,

which, of course, were neither decided by the Citizenship Board, addressed in the District Court

order nor appealed to this Court. The command violates the doctrine of judicial restraint.

Without rehearing, the Opinion’s unlawful cancellation of the Constitution’s most

important act of sovereignty and the resulting threat to the Nation’s government remains unabated,

unauthorized and therefore unlawful.

I: REHEARING IS REQUIRED BECAUSE THE OPINION IGNORED THE FACTS

AND LAW THAT ESTABLISH THE EXISTENTIAL, RETAINED RIGHT OF

THE NATION’S CITIZENS IN THE FUTURE TO IMPOSE REQUIREMENTS

FOR CITIZENSHIP THAT PRECLUDE PEOPLE, INCLUDING FREEDMEN

DESCENDANTS, FROM CITIZENSHIP IN THE NATION.

The overarching facts that determine the issue on appeal are undisputed, yet unapplied by

the Opinion. The Appellant’s issue is straightforward: did the Nation, in the express language of

the 1866 Treaty, surrender the existential right of its citizens to impose future requirements for

citizenship that prevent people, including certain Freedmen descendants, from being citizens?*

* See Opinion pp. 20-21.

3 See Opinion p. 23.

4 The Citizenship Board has not advocated in this appeal that the 1866 Treaty has been abrogated

The Opinion does not expressly deny the pre-1866 Treaty right of the Nation’s native

citizens in the future to determine and limit tribal membership by adopting citizenship

requirements. The Opinion does not expressly deny that due to the retained rights doctrine, in

making the 1866 Treaty the Nation retained all rights, including the sovereign right of native

citizens to so do unless expressly surrendered in the language of that Treaty.” The Opinion does

not deny that if the Nation fails to so surrender by express language in the 1866 Treaty then the

citizenship requirement in the Nation’s Constitution, the People’s use of that right cannot be is not

subject to judicial cancellation by this Court.

The Opinion then overlooked several critical facts that, if applied, would have required the

Opinion to uphold the Citizenship Board’s rejection of the citizenship applications. First, and

foremost, the Opinion notes, but omits rigorous application of the fact that the 1866 Treaty

language contained no language clearly expressing the Nation’s intent to deprive its citizens of the

exercise of their pre-existing, otherwise retained existential right® in the future to impose a

by either the United States or the Nation’s constitutional requirements which the United States

authorized and then pre-approved. In passing, the plaintiffs’ ineffective assertion of abrogation

does raise an important policy issue worth noting. According to the United States Supreme Court,

“[t]he power [of Congress] exists to abrogate the provisions of an Indian treaty” and “it was never

doubted that the power to abrogate existed in Congress.” Lone Wolf v. Hitchcock, 187 U.S. 553,

566 (1903). Any claim that a nation lacks the equivalent power to abrogate a treaty provision

through a constitution approved by the United States, while not necessary for the Citizenship Board

to prevail here, is particularly unfair. Enforcement of such inequality by a tribal court would be

especially demeaning of sovereignty.

> Tribes possess the right to change citizenship requirements to exclude citizens from future

citizenship. The Salish and Kootenai Tribe did exactly that by increasing its blood quantum. In

1960 the Confederated Salish and Kootenai Tribes exercised their sovereignty by tightening their

membership requirements and “established that only those born with one-quarter or more blood

quantum could be tribal members.” R.L. Trosper 1976 Native American Boundary Maintenance:

The Flathead Reservation, Montana 1860-1970, Ethnicity (1976) Vol. 3, 256-274, cited in Russell

Thornton, Population Research and Policy Review, Vol. 16, pp. 33-42 (1997).

® The United States Supreme Court expressly determined that a tribe’s right to determine its

membership is existential. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72, n.32 (1978) (“{a]

citizenship requirement that would preclude citizenship of certain individuals, including some

Freedmen descendants. Proper application by the Opinion under the “beyond a reasonable doubt

standard,” should have ended the case with a decision in the Citizenship Board’s favor.’

As part of its omission, the Opinion overlooked and failed to apply additional facts raised

at oral argument. The United States in specific treaties with Tribes, including the Muscogee

(Creek) Nation before 1830 until after 1866, used particular language which demonstrates that the

United States knew how to use various words of perpetuity.’ The centuries old common law

practice, codified in Oklahoma’s warranty deed statute, 16 O.S. § 40 and identified at oral

argument, uses the express word “forever” when perpetual effect is intended. Those facts

demonstrate that the 1866 Treaty did not, beyond a reasonable doubt, intend perpetuity and

therefore should end the case in the Citizenship Board’s favor.?

By then utilizing the canons of construction, the Opinion confirms that critical omitted fact

of the native citizens’ continuous right to adopt restrictive citizenship requirements. By identifying

tribe’s right to define its own membership for tribal purposes has long been recognized as central

to it existence as an independent political community.”) (Emphasis added.)

7 The retained right of native citizens to limit citizenship in the future is reinforced by the citizens’

act of voting on adoption of the Constitution. If it is beyond a reasonable doubt that right did not

exist, why then did the Treaty counterparty, the United States, require the Freedmen right to vote

on that adoption and why did that counterparty pre-approve the Constitution which required such

right to vote? 3,590 voters, exercising the rights of native citizens, voted. See M(C)N Const. Art.

X, Sec. 2, (annotation).

8 See, 1818 Treaty with the Muscogee (Creek) Nation, using “forever”; 1828 Treaty with Western

Cherokee Nation, using “forever” and “in all future time”; 1855 Treaty with the Chickasaw Nation

and Choctaw Nation, using “forever” and “absolutely”; 1863 Treaty with Kickapoo Nation, using

“perpetual”; and 1870 Treaty with the Klamath Tribes and Modoc Nation, using “perpetual and

forever.”

° “Indian Treaties cannot be rewritten or expanded beyond their clear terms to remedy a claimed

injustice or to achieve the asserted understanding of the parties.” Choctaw Nation v. United States,

318 U.S. 423, 432 (1943).

and wrongly applying some of the canons of construction which the Opinion determined

applicable, the Opinion at p. 17, actually impeaches its own result:

In general, the canons are: (1) A treaty must be liberally interpreted

in favor of the Indians or tribes in question[,] (2) A treaty must be

construed as the Indians understood it[,] (3) Doubtful or ambiguous

expressions in the treaty must be resolved in favor of the given

Indian tribe[, and] (4) Treaty provisions that are not clear on their

face may be interpreted from the surrounding circumstances and

history.

Canons of construction only apply when an ambiguity exists. See, Connecticut Nat. Bank

v. Germain, 503 U.S. 249, 254 (1992) (“When the words of a statute are unambiguous, then, the

299

first canon is also the last: ‘judicial inquiry is complete.’”) Here, an ambiguity only exists when

the treaty uses words that can be read in favor of the Nation. By applying the canons (and implicitly

finding an ambiguity,) the Opinion concedes that the Nation’s rights expressed in its own

Constitution are embodied by the Treaty. By so doing, the Opinion prevents the finding that there

must be no reasonable doubt as to perpetual surrender of the right to restrict membership in the

future required to cancel the Constitution’s requirements.

Under the Opinion’s first and third canons the Nations position must legally prevail, as the

canons quoted use of “must be liberally interpreted in favor of the Indians or tribes” and “must

be resolved in favor of the given Indian tribe” clearly confirm. (Emphasis added.) Accordingly,

the Court cannot meet the legal standard required for constitutional cancellation and the case

should end.

Application of the second cited canon likewise causes the legal requirement for

cancellation to fail and requires the Nation to prevail. Is it likely that when the Muscogee (Creek)

Commissioners executed the 1866 Treaty, they understood and agreed that their Indian tribe could

one day consist of native Indian citizens and tens of thousands of non-Indian Freedmen

descendants and that the Freedmen descendants, unlike native citizens, when the Treaty was

adopted, would have a future right to perpetual citizenship? Not surprisingly, the Opinion offers

no evidence of such an understanding.

Omitting all of the foregoing, the Opinion’s holding turns to referencing history and

surrounding circumstances under the fourth cannon. The Opinion does so by selectively

referencing “historical writings, legislative actions, and Court opinions in the years immediately

following the ratification of the Treaty of 1866” for the proposition that the historic Creek Nation

believed the Freedmen and their descendants to have been given the rights of native citizens by

virtue of the Treaty. Opinion at p. 18. No one disputes that the Treaty conferred to the Freedmen

and their descendants the rights of “native citizens” and that the Freedmen and their descendants

enjoyed those rights in the years immediately following the Treaty of 1866 up to and until the

adoption of the Nation’s 1979 Constitution. The question presented in this case is not whether the

Freedmen and their descendants enjoyed the rights of native citizens as a result of the Treaty, but

whether the Nation surrendered it the native citizens’ right to impose restrictions on membership

in the future by granting perpetual citizenship. The historic writings, legislative acts, and Court

opinions upon which the Opinion rests its holding do not address, much less resolve the question

before this Court. The Opinion identifies nothing in the history or surrounding circumstances under

the fourth canon of construction establishing beyond a reasonable doubt that the Nation had

destroyed its right to impose restriction in the future and that the Nation understood it had conferred

via the Treaty perpetual citizenship to the Freedmen and their descendants.

If those outcome determinative omitted facts had been expressly included and legally

applied correctly, then the Opinion then would have failed to meet the high legal standard for

constitutional invalidation and instead resulted in the continued recognition of the Nation’s

unsurrendered sovereignty and reversal of the District Court’s order.

The Opinion further omits a principal canon of construction requiring two documents (here

the Constitution and the 1866 Treaty) to be each given effect if possible.'? The Citizenship Board’s

position satisfies that canon. The Opinion does not. If that canon had been applied, rather than

omitted, the constitutional requirement could not have been judicially cancelled.

The Opinion further omits the proper application of the canon giving effect to the usage by

the parties. The Nation’s constitutional usage is obvious. So is the identical post-promulgation

usage by the 1866 Treaty counterparty, the United States. Three times over eighty years, by action

of the Roosevelt, Carter, and Biden Administrations (i.e. the United States,) the Treaty

counterparty recognized the Nation’s right to adopt such language as utilized in the 1979

Constitution.!!

Rehearing is required to correct the Opinion’s omissions and violation of the applicable

law requiring the challenge of a constitutional provision to show that the provision is invalid

beyond a reasonable doubt. Likewise, rehearing is required to correct the Opinion’s misapplication

of the canons of construction, which further confirms the failure to show constitutional invalidity

beyond a reasonable doubt. That correction should result in reversal of the District Court order.

'0 US. v. Stewart, 311 U.S. 60, 64 (1940), explaining the “pari materia” canon of construction.

'! The Opinion attempts to refute the reasoning of the 1941 Solicitor’s Opinion. That attempt

misses the point. The issue is not whether the Solicitor’s legal analysis is erroneous. Rather, the

issue is whether the Treaty parties agreed on the result of the language. The Treaty parties both

agreed that the Nation still had the right to determine the citizenship by using the constitutional

requirement at issue, as the United States’ approval of the Nation’s 1979 Constitution, the

Solicitor’s opinion and its reaffirmation of the Opinion by the Assistant Secretary of the

Department of the Interior, all confirm. Against that federal counterparty action, the Opinion

offered no contrary statements from the federal counterparty.

II: THE OPINION VIOLATES THE CONSTITUTION BY PHYSICALLY

AMENDING THE CONSTITUTION.

The Nation’s Constitution is the supreme law of the land. Accordingly, in M(C)NCA

Title 7 § 1-102(A) provides:

The Nation Council finds that:

A. Constitution supreme. The 1979 Constitution of the Muscogee (Creek)

Nation (“Constitution”) shall be supreme in all matters of law relating to,

arising under or in conflict with this Title, and

The Nation’s courts’ existence and authority solely arise from the Constitution adopted in

1979 by the People. Those courts are bound and limited by the Constitution. It is beyond dispute

that this Court cannot lawfully violate the Constitution.

The Constitution recognizes one, and only one, body to enact the Constitution in the first

instance:

Under the guidance of the Almighty God, our Creator, We the

People of the Muscogee (Creek) Nation, do promote Unity, to

establish Justice, and secure to ourselves and our children the

blessings of Freedom, to preserve our basic Rights and Heritage, to

strengthen and preserve self and local Government, in continued

relations with the United States of America, do ordain and

establish this Constitution for the Muscogee (Creek) Nation.

Preamble of the Muscogee (Creek) Nation Constitution. (Emphasis added.)!?

The Muscogee Nation Supreme Court was created by the Muscogee Nation Constitution.

As such it is subject to those limitations contained in the Constitution. “Each of this Nation’s three

branches of government hold great power, but each must also act with a great sense of

responsibility and recognition of its rightful authority and its concomitant limitations.” Oliver v.

Muscogee (Creek) National Council, SC-06-04 (Muscogee (Creek) 2006) (emphasis added).

'2 Even then, federal statute required federal approval of the OWA Constitution enacted by the

People. 25 U.S.C. § 5203.

10

The Constitution does not authorize justices or judges to amend the Constitution. Rather,

the People used express language to underscore separation of powers and thereby limit the powers

of the judicial branch of the Nation’s constitutional government. Specifically, the People have

authorized only themselves and their elected representatives, the National Council, together to

amend the Constitution:

(a) This Constitution shall be amended by:

(1) Passage of an amendment ordinance before the Muscogee

(Creek) National Council, which shall require affirmative vote

of 2/3rds of the full membership of the National Council for

approval.

(2) A two-thirds (2/3) affirmative vote of the eligible voters who

vote in special election called for said purpose by the Principal

Chief pursuant to the rules and regulations that the Muscogee

(Creek) National Council shall prescribe.

M(C)N Const. Art. IX. That language is consistent with the United States Supreme Court’s

statement that courts do not have the power of “amendment under the guise of interpretation.”

West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404 (1937).

The Opinion violates those constitutional limitations in expressly amending the

Constitution by physically striking out a portion of the People’s language in what the Opinion

labels a “correction.” As the Opinion at p. 22 sets out:

By striking “by blood” from Article III, Section 2, the Nation is left

with the following citizenship provision:

Persons eligible for citizenship in the Muscogee (Creek)

Nation shall consist of Muscogee (Creek) Indians by-bleed

whose names appear on the final rolls as provided by the Act

of April 26, 1906 (34 Stat. 137), and persons who are lineal

descendants of those Muscogee (Creek) Indians by-bleed

whose names appear on the final rolls as provided by the Act

of April 26, 1906 (34 Stat. 137); (except that an enrolled

member of another Indian tribe, nation, band, or pueblo shall

not be eligible for citizenship in the Muscogee (Creek)

Nation.)

11

With this correction, citizenship is available to any “Muscogee

(Creek) Indians whose names appear on the final rolls as provided

by the Act of April 26, 1906 (34 Stat. 137), and persons who are

lineal descendants of those Muscogee (Creek) Indians whose names

appear on the final rolls as provided by the Act of April 26, 1906

(34 Stat. 137)[.]”

(Emphasis added.) Neither the People nor the National Council have acted to adopt such a

“correction,” nor did the Department of the Interior approve it.!?

This Court’s constitutional violation is magnified by the substance of this Court’s

amendment. The judicial rewriting of Const. Art. III, § 2, substantially changes the sovereign

exercise by the People of their existential right to define national membership. The result is a

constitutional text radically different from words actually intended and enacted by the only body

with constitutional authority to so act—the People.

That magnification of the Opinion’s constitutional violation is further heighted by the

omitted fact that no Creek citizen, other than the five signatories of the Opinion, have actually

voted for the new constitutional language. Even more striking is the fact, omitted from the Opinion,

that there is no evidence anywhere that the People would have enacted a constitution containing

this Court’s significant “correction,” since the People voted on the Constitution as a whole, rather

than separately on distinct Articles.

Rehearing is required to remedy this Court’s unconstitutional physical amendment of the

Constitution and to thereby restore the constitutional power of amendment to the only bodies

which possess it—the People and their elected National Council.

'3 The Opinion cites no Muscogee (Creek) or federal authority for judicial amendment of the

Constitution.

12

I: THE OPINION’S UNNECESSARY DETERMINATION THAT THE

CONSTITUTION’S MEMBERSHIP REQUIREMENT WAS “VOID AB INITIO”

RENDERS THE NATION’S GOVERNMENTAL OPERATIONS SINCE

ADOPTION OF THE 1979 CONSTITUTION LEGALLY INFIRM.

The question of whether the 1979 constitutional membership requirement was in the

Opinion words “void ab initio” was not presented to or decided by the Citizenship Board or the

District Court. As the District Court’s order affirmed by the Opinion demonstrates, the

determination of the constitutional provision as “void ab initio” is not necessary to afford the

plaintiffs’ relief.'4 Although such action would have been legally erroneous, this Court could have

simply affirmed the District Court’s conclusion that the 1866 Treaty precluded the Citizenship

Board’s enforcement of the constitutional provision to deny plaintiffs’ applications. Such an

approach, although legally flawed, would have furthered the fundamental principle of judicial

restraint, which prevents the courts and judicial officers from becoming political legislators.

Instead, the Opinion made the unnecessary finding that the People’s constitutional

provision is “void ab initio.” Under the Opinion’s conclusion of “void ab initio,” this Court

implicitly calls into question the results of every election after the adoption of the 1979

Constitution, since the Freedmen did not vote. As a result, the Opinion renders all acts of the

National Council and Chiefs potentially open to question.'°

'4 The United States Supreme Court recognizes the well-established general rule that in the

ordinary course, appellate courts do not decide questions neither raised nor resolved below. See,

Exxon Shipping Co. v. Baker, 554 U.S. 471, 487 (2008). The use of dictum to determine significant

rights is inappropriate. “Judges risk being insufficiently thoughtful and cautious in uttering

pronouncements that play no role in their adjudication.” Horne v. Coughlin, 191 F.3d 244, 247

(2nd Cir. 1999) (quoted with approval in Pearson v. Callahan, 555 U.S. 223, 239-40 (2009)). The

doctrine of judicial restraint requires courts to decide the issue before them on the narrowest

grounds whenever possible. As now Chief Justice Roberts then stated, “a cardinal principle of the

judicial process” is “if it is not necessary to decide more, it is necessary not to decide more.” PDK

Lab’ys Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Robers, J. concurring), quoted with

approval by Justice Stevens in Citizens United v. FEC, 558 U.S. 310, 396 (2010) (Stevens, J.

concurrence).

'S That result conflicts with the requirement that constitutional provisions are presumed valid until

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Of particular significance, the potential challenges caused by the Opinion’s language

extend to executive branch appointments confirmed by the legislature, including justices and

judges. That challenge could involve all orders of the Nation’s courts after adoption of the 1979

Constitution, including the Opinion here. That use of “void ab initio” in reference to the

Constitution’s citizenship requirement is unnecessary to resolve the appeal. For that separate

reason, additional to the reasons in Propositions I and II, the Opinion language requires rehearing.

IV: THE OPINION’S INVALIDATION OF ALL CONSTITUTIONAL, STATUTORY

AND REGULATORY PROVISIONS USING “BLOOD” REFERENCE

DETERMINES ISSUES NOT BEFORE THE CITIZENSHIP BOARD, THE

DISTRICT COURT, OR THE COURT IN THIS APPEAL.

The Opinion extends its unnecessary “void ab initio” language beyond the constitutional

citizenship requirements to unnamed constitutional statutory and regulatory provisions that utilize

a “by blood” reference not at issue in the District Court and unaddressed by it order under review.'®

Courts are required to hear actual cases and controversies and not hypothetical ones. Oliver v.

Muscogee (Creek) National Council, SC-06-04 (Muscogee (Creek) 2006).

Although not expressly identified in the Opinion, the broad “void ab initio” mandate

appears to encompass certain constitutional and statutory provisions requiring a full citizen’s

minimum % blood quantum for office holding. Const. Art. III, Sec. 4, requires that the Chief and

Deputy Chief hold full citizenship. Const. Art. VI, Sec. 2(c), requires all members of the National

Council to hold full citizenship. Likewise, M(C)NCA Title 26 § 3-205, requires the District Judge

a challenger shows invalidity beyond a reasonable doubt.

'6 The Opinion holds that the Treaty of 1866 makes the non-native Freedmen descendants Indians,

thereby redefining the generally understood definition of an Indian which is based on descent

(including blood quantum.) Rather, the actual language provides that the Freedmen “shall have

and enjoy all the rights and privileges of native citizens.” Treaty of 1866, Art. II, (emphasis

added.) It does not change the fact that they are not descendants from Creek Indians and therefore

are not Indians.

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and the Supreme Court Justices be full citizens.

If such “blood” requirements are now legally “void ab initio,” then like the result of the

Opinion’s “void ab initio” finding of the constitutional citizenship requirement, all such official

occupants, past and present, and their actions are subject to potential challenge.'’ Rehearing is

further separately required, in addition to the reasons in Propositions I, II and III, to remedy that

potential impact on the Nation’s operations caused by the Opinion’s violation of the doctrine of

judicial restraint by the unnecessary determination of issues not before this Court.

V: THE OPINION’S COMMAND FOR ADMINISTRATIVE ACTION IN NON-

EXISTENT CASES, AND AS TO WHICH RELIEF IS NOT PRESENTLY

SOUGHT IN THIS COURT, IS BEYOND THIS COURT’S JURISDICTION.

The National Council and Chief, by statute, have waived the sovereign immunity of the

Citizenship Board only as to judicial administrative review of the Citizenship Board’s actual

decisions. Nowhere have the People by constitution or through their elected representatives by

statute conferred jurisdictional power on this Court to decide yet to be filed actions and to

command a constitutionally created non-judicial agency to take a particular result on those

potential applications."

'’ The constitutional and statutory blood quantum requirements for office holding affect all citizens

of the Nation the same. All citizens of less than a “4 blood quantum are ineligible for the impacted

offices.

'§ M(C)NCA Title 7 § 4-110(B), which is the only waiver of the Citizenship Board’s sovereign

immunity from suit as to its decisions on citizenship applications, authorizes only judicial review

by the District Court of the Citizenship Board’s completed action on an existing application and

then appellate review of that District Court decision on the completed Citizenship Board’s action

on an existing application. Nowhere does § 4-110(B) authorize the district of Supreme Court to

adjudicate and command action by the Citizenship Board in a non-existent case:

Judicial appeals. The Courts of the Muscogee (Creek) Nation are hereby granted

exclusive jurisdiction over all disputes relating to, arising under or in conflict with

this Title. After the applicant has exhausted the administrative remedies of the

Citizenship Board, and a final determination not to enroll the applicant has been

made, the applicant shall have the right to file an appeal of said decision in the

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Nevertheless, without citation to Muscogee (Creek) or federal authority, the Opinion

decides non-existent, yet to be filed applications and, although not an issue in this appeal,

commands the Citizenship Board to take certain actions in those potential future cases.'? In this

case, the Citizenship Board decided only the two applications before it and nothing else. Its orders

said nothing about future applications. Likewise, the District Court reviewed and decided only

those two applications. Nothing more was determined by the District Court. Like the Citizenship

Board, the District Court’s order said nothing about future applications.”°

Although unclear, the command may have been intended to procedurally preclude

subsequent judicial appellate review of the issues decided in the Opinion. Of course, this Court

could later include a majority of members with legal views different than those in the Opinion.

Nevertheless, the command of future action is not a judicial act of determining an actual present

Muscogee (Creek) Nation District Court. The applicant shall serve notice of the

appeal to the Chairman of the Citizenship Board or his authorized representative at

the Citizenship Board Offices. In hearing the appeal, the Muscogee Nation District

Court shall give proper deference to the administrative expertise of the Citizenship

Board. The Muscogee Nation District Court shall not set aside, modify, or remand

any determination by the Board unless it finds that the determination is arbitrary

and capricious, unsupported by substantial evidence or contrary to law. Standard

procedures of the Muscogee (Creek) Nation District Court, including the right to

appeal to the Supreme Court, shall govern all proceedings.

'9 The Opinion concludes by commanding:

The matter is REMANDED to the Appellant, Citizenship Board, who is directed

to apply the Treaty of 1866 and issue citizenship to the Respondents, and any other

future applicant who is able to establish a lineal descendant on the Creek By Blood

Dawes Roll, or the Creek Freedmen Dawes Roll.

0 The Citizenship Board’s orders did not determine that the plaintiffs were descendants of

Freedmen under the 1866 Treaty and the 1906 Freedmen Roll. That decision is for the Citizenship

Board alone to make in the first instance pursuant to its constitutional authority. Accordingly, the

Opinion’s requirement of admission is beyond the appellate authority of this Court.

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case. It is legally inappropriate.”' The Opinion is in reality a political act controlling future matters,

rather than reviewing existing orders by a constitutionally created, executive branch agency.

Accordingly, the Opinion requires rehearing to correct that unconstitutional, unauthorized political

command as to non-existent cases or controversies.”

CONCLUSION

In its review of the District Court order addressing the Citizenship Board’s denial of two

applications for citizenship, the Opinion creates a constitutional crisis. The Opinion cancels the

supreme act of the People’s sovereignty, the constitutional exercise of their existential right to

determine citizenship in the future.7 The Opinion does so based on the Treaty’s supposed

*! See, Oliver, supra.

*2 While the Opinion in another place at p. 22, references an opinion of the Cherokee Nation

Supreme Court, Jn re: Effect of Cherokee Nation v. Nash and Vann v. Zinke, District Court for the

District of Columbia, Case No. 13-01313 (TFH) and Petition for Writ of Mandamus Requiring the

Cherokee Nation Registrar to Begin Processing Citizenship Applications (February 22, 2021), that

opinion in another Nation does not, and cannot, confer extra-constitutional authority on a court of

this sovereign Nation. Additionally, a close review of the Cherokee Nation opinion confirms that

it was not issued in an actual contested controversy. That court’s recognition of the Freedmen

descendants as citizens had been required, as a political act without apparent objection by the

Cherokee legislative branch. The legislature required recognition of the unappealed prior decision

of a single federal district judge in Washington D.C. as binding on that Nation.

That federal trial judge addressed none of the legal issues raised here. The Cherokee

Nation’s Constitution at issue was not adopted pursuant to the OIWA and therefore, unlike here,

had not been approved by the United States, the counterparty to the Cherokee Treaty of 1866.

Further, the Cherokee case did not decide whether “right of native citizens” included the right in

the future to impose citizenship restrictions by a constitution, whose adoptive vote included

Freedmen. The Cherokee case did not address the highest known legal standard required for

constitutional invalidation or its application to the constitutional language here. The Opinion did

not address the rules of construction and the necessary finding of constitutional validity required

by their usage. The Cherokee case did not address judicial physical altering of the Constitution.

The Cherokee case did not address the legality of deciding appeal issues not before and decided

by the district court. Accordingly, that opinion of another Nation not binding on this Nation should

not control here.

*3 The Opinion rarely mentions sovereignty and then largely in passing.

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surrender of that right. Yet the Opinion identifies no express words of surrender, as confirmed by

the absence of language of perpetual citizenship for the Freedmen descendants and without

language showing the intent of the Nation to give up that future right. Most significantly, the

Opinion cancels a constitutional provision without the necessary legal showing that beyond a

reasonable doubt that the provision is invalid.

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-Constitution governmental senior office holders and

their actions. The Opinion unnecessarily further invalidates constitutional and statutory language

not at issue before the Citizenship Board or the District Court. Finally, the crisis culminates in its

mandate as to cases unknown and unfiled. Rehearing is required to recognize and apply that 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 so doing, then avert a

constitutional crisis.

The time for action to protect the Constitution is now. The Citizenship Board has

demonstrated this Court’s violation of the People’s constitutional right to define citizenship. The

law states the burden that must be met to take away that constitutional right. The Court did not

identify, much less meet that burden. Now, this Court has the opportunity to (a) grant rehearing,

(b) vacate the Opinion, (c) reverse the District Court, and (d) uphold the Citizenship Board’s

application of the Constitution.

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Respectfully submitted,

Graydon D Jeathey, Jr., OBAG 5568; MCNBA # 1293

R. TrentShores, OBA # 19705; MCNBA # 1082

Barrett L. Powers, OBA # 32485, MCNBA # 1306

GABLEGOTWALS

110 N Elgin Avenue, Suite 200

Tulsa, Oklahoma 74120

Telephone: (918) 595-4800

Facsimile: (918) 595-4990

Email: dluthey@gablelaw.com

tshores@gablelaw.com

bpowers@gablelaw.com

Attorneys for Appellant

Citizenship Board of the Muscogee (Creek) Nation

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CERTIFICATE OF SERVICE

I hereby certify that on the 4th day of August, 2025, a true and correct copy of the foregoing

instrument was served via U.S. Mail, postage prepaid, and/or Electronic Mail to the following:

Damario Solomon-Simmons

Beatriz Mate-Kodjo

SOLOMON SIMMONS LAW

601 S. Boulder Ave., Ste. 602

Tulsa, OK 74119

Email: dss@solomonsimmons,.com

kheckenkemper@solomonsimmons.com

beatriz(@mate-kodjo-law.com

M. David Riggs

RIGGs, ABNEY, NEAL, TURPEN, ORBISON & LEWIS

502 West 6th Street

Tulsa, OK 74119

Email: driggs(@riggsabney.com

Jana L. Knott

BASS LAW

252 NW 70" St.

Oklahoma City, OK 73116

Email: jana(@basslaw.net

Attorneys for Respondents

Geri Wisner, Counsel for Appellant — gwisner@mcnag.com

Jeremy Pittman, Counsel for Appellant — jpittman@mcnag.com

Clinton Wilson, Counsel for Appellant — cwilson@mcnag.com

Graydon D. Luthey, oN

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