IN THE MUSCOGEE (CREEK) NATION SUPREME COURT,

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UPREME COURT

CITIZENSHIP BOARD OF THE ) FILED

MUSCOGEE (CREEK) NATION, )

) JUL 2 3 2025

Appellant, ) mM

. : _ CONNIE DEARMAN

) Case No.: SC-2023-10 1). COGEE (CREEK) NATION

v. ) _— COURT CLERK

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

)

RHONDA K. GRAYSON and )

JEFFREY D. KENNEDY, )

)

Respondents. )

Appeal from District Court, Okmulgee District, Muscogee (Creek) Nation.

Graydon D. Luthey, Jr., R. Trent Shores, and Barrett L. Powers, GableGotwals, Tulsa,

Oklahoma; Geri Wisner, Jeremy Pittman, and Clinton Wilson, Muscogee (Creek) Nation,

Department of Justice, Okmulgee, Oklahoma, for the Appellant, Citizenship Board of the

Muscogee (Creek) Nation.

Jana L. Knott, Bass Law, Oklahoma City, Oklahoma; Damario Solomon-Simmons,

Solomon Simmons Law, Tulsa, Oklahoma; M. David Riggs, Riggs, Abney, Neal, Turpen, Orbison

& Lewis, Tulsa, Oklahoma, for the Respondents, Rhonda K. Grayson and Jeffrey D. Kennedy.

ORDER AND OPINION

MVSKOKVLKE FVTCECKV CUKO HVLWAT VKERRICKV HVYAKAT OKETV

YVNKE VHAKV HAKATEN ACAKKAYEN MOMEN ENTENFVTCETV, HVTVM

MVSKOKE ETVLWVKE ETEHVLVTKE VHAKV EMPVTAKV.!

Before: ADAMS, C.J; LERBLANCE, V.C_/.; DEER, SUPERNAW, THOMPSON, W/.

HARJO-WARE and MCNAC, W/, recused and not participating in the decision.

Order of the District Court affirmed.

1“The Muscogee (Creek) Nation Supreme Court, after due deliberation, makes known the following decision based

on traditional and modern Mvskoke law.”

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SC-2023-10, Citizenship Board of the Muscogee (Creek) Nation v. Rhonda K. Grayson and Jeffrey D. Kennedy

Order and Opinion, filed July 23, 2025

For centuries, our people have endured removal from our homelands, forced assimilation,

and near extinction in exchange for promises from the federal government, through numerous

treaties. The United Stated Supreme Court has honored these treaties and “[held] the government

to its word.”

Today, our Nation’s Supreme Court is presented with a similar challenge. Are the

Creek Freedmen, and their descendants, entitled to “all the rights and privileges of native [Creek]

citizens,” as guaranteed by the Treaty of 1866, between the United States and the Muscogee

(Creek) Nation? Are we, as a Nation, bound to treaty promises made so many years ago? Today,

we answer in the affirmative, because this is what Mvskoke law demands.

BACKGROUND

I. Treaty of 1866

In September of 1865, five (5) months after the surrender of the Confederacy, and the end

of the American Civil War, a delegation was sent by President Andrew Johnson to Fort Smith,

Arkansas for the purpose of negotiating new treaties with any of the Indian Nations located within

Indian Country, or in the State of Kansas. The position of the United States was that, “[those]

nations having entered into treaties with the so-called Confederate States, and the rebellion being

now ended, [were left] without any treaty whatever or treaty obligations for protection by the

United States.”? The federal government required that any new treaty negotiated by this delegation

include the stipulation that “the institution of slavery, which has existed among several of the

tribes, must be forthwith abolished, and measures taken for the unconditional emancipation of all

persons held in bondage, and for their incorporation into the tribes on an equal footing with the

original members, or suitably provided for.’”4 [Emphasis Added]

2 McGirt v. Oklahoma, 591 U.S. 894, 898. (July 9, 2020).

3 Report of D.N. Cooley, Southern Superintencency, October 30, [865., 296, 298.

4 Id.

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Despite initial opposition, on June 14, 1866, the Creek Nation entered into a new treaty

with the United States consistent with the above-referenced stipulations. Specifically, the Creek

Nation agreed to the following terms in Article II of the treaty:

The Creeks hereby covenant and agree that henceforth neither slavery nor

involuntary servitude, otherwise than in the punishment of crimes, whereof the

parties shall have been duly convicted in accordance with laws applicable to all

members of said tribe, shall ever exist in said nation; and inasmuch as there are

among the Creeks many persons of African descent, who have no interest in the

soil, it is stipulated that hereafter these persons lawfully residing in said country,

and may return within one year from the ratification of this treaty, and their

descendants and such others of the same race as may be permitted by the laws of

the said nation to settle within the limits of the jurisdiction of the Creek Nation as

citizens [thereof,] 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.

[Emphasis Added]

In the years immediately following ratification of the 1866 treaty, the Creek Nation took

specific actions to fulfill its Article II treaty obligation to incorporate the Creek Freedmen as

citizens of the Nation.

On October 12, 1867, the Creek Nation adopted a new Constitution, vesting the lawmaking power of the Nation within two houses, the House of Warriors and the House of Kings.

The new Constitution authorized each etvl wv (tribal town) to elect a member to the House of Kings

and House of Warriors. At the time, three (3) African Creek towns (Arkansas Colored, North Fork

Colored, and Canadian Colored) were represented in the legislative body under these

Constitutional provisions.> °

5 Affidavit of Gary Zellar, Doc. 10, Exhibit D, Muscogee (Creek) Nation District Court Record.

6 During oral argument, counsel for the Appellant agreed that this “certainly occurred.” Recording of June 10, 2025,

Oral Argument, at 27:23.

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On October 1, 1877, in a letter addressed to the legislative assembly, Principal Chief Ward

Coachman recommended that the legislative body take action to recognize the citizenship rights

of the Creek Freedmen, stating:

...Inasmuch as there are Freedmen among us, whose rights under the treaty of 1866,

have not by some been recognized, and in consequence thereof have been

discouraged, are not improving or advancing as they might do; and the treaty

relative thereto being so plain that no one can mistake or misunderstand it. I allude

particularly to those known as the McGilvery or McGilbrey Freedmen whom we

know belong to our own people, were here within our country when the treaty was

made and have remained among us ever since. I would recommend if necessary

that some action be had recognizing the rights of all who under the treaty are

entitled to citizenship and equal rights and privileges with us.

The legislative body subsequently adopted a new law concerning “Doubtful Citizenship[,]” which

provided that “[a]ll persons who have been at any time adopted by the recognized authorities of

the Muskogee Nation, and all persons of African descent, who were made citizens by the treaty of

June, 1866, between the Creek Nation and the United States, shall hereafter be recognized as

citizens of the Muskogee Nation.””

On October 20, 1886, the historic Supreme Court of the Creek Nation held that “from the

above treaty it is clearly shown that there are three classes of the African descent who are allowed

to enjoy the rights of a Creek citizen. First, those lawfully residing in the nation at the time of the

ratification of said treaty. Second, those who may have resided and may return to this country

within one year from the certification of the treaty and their descendants. Third and such other of

the same race, as may be permitted by the laws of the Nation to remain within the limits of the

jurisdiction of the Nation.”

7 Constitution and Laws of the Muskogee Nation, as compiled by L.C. Perryman, March 1, 1890, Chapter VII, Article

I, Section 2.

8 In re: Roley McIntosh, 7 Mvs. L.R. 348, 349.

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It is clear that the historic Creek Nation, including the executive, legislative, and judicial

branches of its constitutional government, understood the terms of the 1866 Treaty to require

citizenship for the Creek Freedmen on the same level as by-blood citizens.

II. Allotment and Assimilation’

At the close of the 19" century, the United States government shifted its tribal policy to

one of assimilation. In 1887, the General Allotment Act was passed by the United States Congress,

taking lands held in trust for Indian tribes and redistributing smaller portions of these lands to

individual tribal members in fee simple.'!° The Muscogee (Creek) Nation was excluded from this

general allotment as, “the Creeks held their lands under letters patent issued by the President of

the United States, dated August 11, 1852, vesting title in them as a tribe, to continue so long as

they should exist as a nation and continue to occupy the country thereby assigned to them.”!!

“[B]ecause of the special rights that had been conferred upon these tribes, and the fact that they

held patents for their respective lands, it was considered proper, if not indispensable, to obtain the

consent of the Indians to the overthrow of the communal system of land ownership.”!? As a result,

the Dawes Commission was created by the United States Congress in 1893 to work out the terms

of “extinguishment of the national or tribal title” with the Muscogee (Creek) Nation.'? The tribe

resisted cession of its communal lands to such an extent that in a report to Congress in December

of 1894, the Commission stated “that the Indians would not, under any circumstances agree to

cede any portion of their lands to the Government, but would insist that if any agreement were

made for allotment of their lands it should all be divided equally among them.”" Achieving no

° As explained in SC-2021-03, Thlopthlocco Tribal Town v. Anderson, et al., Order and Opinion. (February 28, 2022).

10 24 Stat. 388.

'l See, Woodward v. De Graffenried, 238 U.S. 284, 293 (June 14, 1915).

2 Id.

3 Act of March 3, 1893, ch. 209, 27 Stat. 612, 645,

4S. Misc. Doc. No. 24, 53d Cong., 3d Sess., 7 (1894).

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allotment agreement with the tribes, the United States Congress passed the Curtis Act in 1898,

which, in addition to requiring the registration of all native-born tribal members and — separately

— all “Black Creeks” on what would be known as the Creek By Blood Dawes Roll and the Creek

Freedmen Dawes Roll, also would (1) initiate a forced allotment within the Muscogee (Creek)

Nation if an allotment agreement was not timely reached, (2) made tribal law unenforceable within

the United States and its territories, and (3) abolished tribal courts.'*> As a result, an allotment

agreement of Muscogee (Creek) lands was entered in 1901, which also provided that “[t]he tribal

government of the Creek Nation shall not continue longer than March fourth, nineteen hundred

and six, subject to such further legislation as Congress may deem proper.”!® However, this date

was extended indefinitely by Congress in 1906.'’ “{B]ecause there exists no equivalent law

terminating what remained, the Creek Reservation survived allotment.”!®

Ill. Reorganization

In 1934, the United States Congress passed the Indian Reorganization Act, which

authorized “[a]ny Indian tribe, or tribes, residing on the same reservation” the right to organize

and adopt a constitution for self-government.'? The Muscogee (Creek) Nation was excluded from

this initial legislation. However, in 1936 Congress passed the Oklahoma Indian Welfare Act

(hereinafter, the “OIWA”), which extended similar opportunities for Oklahoma tribes.2° On

August 20, 1979, the Muscogee (Creek) Nation adopted a new Constitution pursuant to the terms

5 Act of June 28, 1898, ch. 517, 30 Stat. 495. See also, Muscogee (Creek) Nation v. Hodel, 670 F. Supp 434

(September 30, 1987), for discussion on the revival of the Muscogee (Creek) Nation tribal courts.

6 Creek Allotment Agreement, ch 676, 31 Stat. 861.

7 Act of April 26, 1906, 34 Stat. 137.

8 McGirt v. Oklahoma, 591 U.S. 894, 906. (July 9, 2020).

Act of June 18, 1934, 48 Stat. 984.

0 Act of June 26, 1936, 49 Stat. 1967.

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of the OIWA. Article III, Section 2 of the 1979 Constitution provides the following requirements

to establish citizenship within the Muscogee (Creek) Nation:

Persons eligible for citizenship in the Muscogee (Creek) Nation shall consist of

Muscogee (Creek) Indians by blood 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) Indian by blood 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 tribe, nation, band, or pueblo shall not be eligible

for citizenship in the Muscogee (Creek) Nation.)

IV. Procedural Background

On July 20, 2018, the Respondents filed a federal action with the United States District

Court for the District of Columbia, seeking an injunction that would require the Muscogee (Creek)

Nation to recognize their citizenship pursuant to the Treaty of 1866. On May 6, 2019, the District

of Columbia issued its Memorandum Opinion dismissing the action without prejudice in order for

the Respondents to first exhaust all tribal remedies within the courts of the Muscogee (Creek)

Nation.

In June of 2019, Respondent Grayson filed her application for citizenship with the

Appellant Board. The application was denied on July 31, 2019, for failure to identify a lineal

descendant on the 1906 Dawes Creek by Blood Roll. Respondent Grayson submitted her appeal

to the Appellant Board on August 6, 2019, and on November 5, 2019, the Appellant Board

confirmed the denial.

Respondent Kennedy submitted his application for citizenship with the Appellant Board in

August of 2019. The application was denied on October 14, 2019, again, for failure to identify a

lineal descendant on the 1906 Dawes Creek by Blood Roll. Respondent Kennedy subsequently

submitted his request for administrative appeal, which was denied on December 12, 2019.

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On March 11, 2020, the Respondents filed a Petition with the Muscogee (Creek) Nation

District Court with one cause of action for alleged violation of the terms of the Treaty of 1866, and

seeking declaratory and injunctive relief.

A two-day bench trial was conducted on April 4-5, 2023, before the Muscogee (Creek)

Nation District Court, and on September 27, 2023, an Order and Opinion on Appeal from

Citizenship Board of the Muscogee (Creek) Nation Denial of Creek Freedmen Citizenship

Applications was issued, finding that the Citizenship Board acted “contrary to the law” and took

action that was “unsupported by the relevant and substantial evidence[,]” therefore finding in favor

of the Respondents and remanding the matter back to the Appellant Board for reconsideration “in

accordance with the clear language of Article II of the Treaty of 1866...wherein lineal descendants

of those individuals listed on the Dawes Final Rolls, including both the Creek By Blood Roll and

Creek Freedmen Roll, are eligible for citizenship in the Muscogee (Creek) Nation.”

On September 29, 2023, the Appellant timely submitted its Notice of Intent to Appeal. This

appeal follows.

JURISDICTION, SCOPE, AND STANDARD OF REVIEW

Pursuant to appellate case law, in an appeal of an agency/board decision, “[t]his Court

reviews the legal conclusions of the District Court and Board de novo.” *! The term de novo review

is defined as “[a]n appeal in which the appellate court uses the trial court’s record but reviews the

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evidence and law without deference to the trial court’s rulings[,]”*“ meaning that the Court will

review the matter with fresh eyes and give no deference to the District Court’s previous ruling.

2! See, Citizenship Board v. Donna Joan Todd, SC-1999-05, 4 Mvs. L.R. 195, 197. (February 16, 2000), and Muscogee

(Creek) Nation Citizenship Board v. Ron Graham and Fred Johnson, SC-2006-03, | Mvs.L.R. __. (November 2,

2007).

2 See, de novo Review, Black’s Law Dictionary (12' ed. 2024).

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ISSUES PRESENTED

1. Did the Muscogee (Creek) Nation District Court commit reversable error by conducting an

evidentiary trial in which witness testimony and exhibits not before the Citizenship Board

in its administrative proceedings were admitted?

2. Did the Muscogee (Creek) Nation District Court commit reversable error by invalidating

Article II, Section 1, and Article HI of the Muscogee (Creek) Nation Constitution?

DISCUSSION

Part 1. Sovereign Immunity

The Appellant asserts that the Nation’s sovereign immunity was violated by the Muscogee

(Creek) Nation District Court when it conducted an evidentiary trial in which witness testimony

and exhibits not previously presented to the Appellant Board during its administrative proceedings

were admitted for consideration by the District Court. The Appellant asserts these actions are

contrary to the statutory requirements of M(C)NCA Title 7, § 4-110 (B), which provides:

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

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. Jn 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.

[Emphasis Added]

On its face, it appears that the Appellant presents a valid argument, as § 4-110 (B)

specifically requires that the District Court “give proper deference” to the Appellant’s

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“administrative expertise[,]” and “not set aside, modify, or remand any determination” absent a

finding that the Appellant’s decision was “arbitrary and capricious, unsupported by substantial

evidence or contrary to law.” However, the Court notes that, on March 22, 2021, the Respondents

previously requested that this Court assume original jurisdiction over this action,”? as, at that time,

the Respondents alleged the matter had “been pending for over a year in the District Court[,]” with

two (2) District Court judges having recused from the case without taking action in the matter. On

March 26, 2021, the Appellant filed its Motion to Dismiss Appeal, arguing in part that the

Respondents’ request was “a disingenuous attempt to circumvent the legal system of the Muscogee

(Creek) Nation and the exercise of discovery in this case...[;]” that the Appellant “must be afforded

the opportunity to engage in the exercise of discovery, including responses and requests for

production of documents, sworn interrogatory responses, answers to requests for admissions and

the opportunity to depose Appellants, their witnesses and experts[;]” and that “[t]here are

numerous questions of fact and law that must also be fully briefed and determined by the District

Court in order to establish a full and complete record for purposes of appeal.” On March 29, 2021,

this Court issued its Order Denying Notice of Appeal, stating that it “would greatly benefit from

the assembling of a complete record before the District Court.”

As previously stated in the Jurisdiction, Scope, and Standard of Review portion of this

Order and Opinion, an appeal to the Supreme Court of an agency or board decision is reviewed

de novo. For purposes of this Court’s review, it is immaterial whether the District Court considered

evidence or witness testimony that was never presented to the Appellant Board during its

proceedings, as our review is conducted without deference given to the District Court’s

*3 See, Unassigned Supreme Court Action, SC-2021-01UN, Rhonda K. Grayson and Jeffrey D. Kennedy v. Citizenship

Board of the Muscogee (Creek) Nation.

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determination. However, this Court is compelled to state that the legal doctrine of judicial

174 25 26 Would prohibit the Appellant from (on the one-hand) arguing in favor of an

estoppe

expanded record when requesting that this Court deny the Respondents’ previous application to

assume original jurisdiction, while (on the other-hand) subsequently arguing against use of that

same expanded record during this appeal, after an unfavorable order has been issued by the lower

court.

For these reasons, the Court is not compelled to reverse or remand the District Court’s

September 27, 2023, Order and Opinion on sovereign immunity grounds.

Part 2. Treaty of 1866 and the Muscogee (Creek) Nation Constitution

M(C)NCA Title 7, § 4-110 (B) provides that “[t]he Courts of the Muscogee (Creek) Nation

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

[Title 7].” [Emphasis Added]. Once an applicant has exhausted all of their administrative remedies,

and has received a final denial of citizenship, an applicant may then file an appeal with the Nation’s

judicial branch. The role of the court in this process is to review the agencies action(s), giving

4 Estoppel, Black’s Law Dictionary (12" ed. 2024): (1) A bar that prevents one from asserting a claim or right that

contradicts what one has said or done before or what has been legally established as true. (2) A bar that prevents the

relitigation of issues. (3) An affirmative defense alleging good-faith reliance on a misleading representation and an

injury or detrimental change in position resulting from that reliance.

25 Judicial Estoppel, Black’s Law Dictionary (12" ed. 2024): Estoppel that prevents a party from contradicting

previous declarations made during the same or an earlier proceeding if the change in position would adversely affect

the proceeding or constitute a fraud on the court.

26 In Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613, the United States Supreme Court

explained in its Eleventh Amendment immunity analysis that it would be “anomalous or inconsistent for a State both

(1) to invoke federal jurisdiction, thereby contending that the “Judicial power of the United States” extends to the case

at hand, and (2) claim Eleventh Amendment immunity, thereby denying that the “Judicial power of the United States”

extends to the case at hand. And a Constitution that permitted States to follow their litigation interests by freely

asserting both claims in the same case could generate seriously unfair results. Thus, it is not surprising that more than

a century ago this Court indicated that a State’s voluntary appearance in federal court amounted to a waiver of its

Eleventh Amendment immunity.” The Court views the Appellant’s prior inconsistent statements in favor of an

“expanded discovery” in which “questions of fact and law” must be “fully briefed and determined by the District

Court” as an effective limited waiver of its immunity in those respects. To hold otherwise would permit the Nation to

achieve an unfair tactical advantage over the Respondents, or in other matters in the future.

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“proper deference to the administrative expertise of the Citizenship Board.””’? The court must

refrain from setting aside, modifying, or remanding the matter absent a “determination [that the

Board’s action] is arbitrary and capricious, unsupported by substantial evidence or contrary to

law.”8 While this statutory process is unambiguous, the terms of art used in § 4-110 (B) to outline

the court’s appellate-review parameters (e.g. arbitrary and capricious, unsupported by substantial

evidence, and contrary to law) are left undefined. This Court has previously stated that, “[w]hen a

statutory provision is unambiguous, we presume the National Council intended the resulting

impact of the unambiguous provision and apply the statute according to the plain meaning of its

terms. Use of the “plain-meaning rule” is both an appropriate judicial deference to the National

Council’s constitutional law-making authority and an analytical hurdle which limits unnecessary

judicial encroachment into the law-making function.””’ As such, the Court must first examine the

plain-meaning, or, in this instance, the plain-use of these administrative-law-specific terms, and

give them an operational definition.

Arbitrary and Capricious: “The [Administrative Procedures Act’s] arbitrary-and-

capricious standard requires that agency action be reasonable and reasonably explained. Judicial

review under that standard is deferential, and a court may not substitute its own policy judgment

for that of the agency. A court simply ensures that’s the agency has acted within a zone of

27 M(C)NCA Title 7, § 4-110 (B)

28 Id.

° See, Lisa K. Deere v. Joyce C. Deere, SC-2017-02, | Mvs. L.R._. (May 17, 2018), citing Slay v. Muscogee

(Creek) Nation Travel Plaza and Hudson Insurance Company, SC-2014-01, Mvs. L.R. _. (October 23, 2014),

Cox v. Kamp, SC1991-03, 4 Mvs. L.R. 75, 79. (June 27, 1991), and Ellis v. Checotah, et a/., SC-2010-01, — Mvs.

L.R.___. (May 22, 2013).

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reasonableness and, in particular, has reasonably considered the relevant issues and reasonably

explained the decision.”?°

Unsupported by Substantial Evidence: “The phrase “substantial evidence” is a “term of

art” used throughout administrative law to describe how courts are to review agency factfinding.

Under the substantial-evidence standard, a court looks to an existing administrative record and

asks whether it contains “sufficien[t] evidence” to support the agency’s factual determinations.

And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary

sufficiency is not high. Substantial evidence, [the United States Supreme Court] has said, is “more

than a mere scintilla.” It means - and means only - “such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.

Contrary to Law: Simply defined as an action that is “[i]llegal; unlawful; [or] conflicting

with established law.’

With these terms now defined, the Court must review the Appellant Board’s proceedings,

along with the relevant provisions of the Muscogee (Creek) Nation Constitution, treaties, and

applicable Mvskoke law to determine if the Appellant’s actions were (1) arbitrary and capricious,

(2) unsupported by substantial evidence, or (3) contrary to law.

Part 2 (a) Arbitrary and Capricious

As stated above, when reviewing agency action under the arbitrary and capricious standard,

the Court’s role is simply to determine if the agency’s actions were reasonable, and that their

3° See, Federal Communications Commission v. Prometheus Radio Project, 592 U.S. 414, 423. (April 1, 2021), citing

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513-514; Motor Vehicle Mfrs. Assn. of United States, Inc. v.

State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43; FCC v. WNCN Listeners Guild, 450 U.S. 582, 596.

3! See, Biestek v. Berryhill, 587 U.S. 97, 102-103. (April 1, 2019), citing T-Mobile South, LLC v. Roswell, 574 U.S.

293; Consolidated Edison Co. v. NLRB, 305 U.S. 197; Richardson v. Perales, 402 U.S. 389; Dickinson v. Zurko, 527

U.S. 150.

32 Contrary to Law, Black’s Law Dictionary (12" ed. 2024).

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decision was reasonably explained. Pursuant to the record-on-appeal, it is clear that the Appellant

Board followed the procedural requirements of Title 7. The Respondents were both provided

notification that their applications for citizenship had been denied for failure to identify a lineal

descendent on the 1906 Creek By Blood Dawes Roll. This decision was based on the Appellant

Board’s understanding of Title 7 and the Muscogee (Creek) Nation Constitution, and was bolstered

by discussions with the Nation’s Office of Attorney General, who advised the Appellant Board

that they were “following the law and the Constitution and the Code. So [the Appellant Board

should] continue to do what [they were] doing.”*? The Appellant Board is not a legal-counsel

functionary of the Nation’s government. Its role is to process citizenship applications in line with

its understanding of Title 7 and the Nation’s laws. It is entirely reasonable that the Appellant Board

relied on legal advice it received from the Nation’s Office of Attorney General, and continued

denying citizenship applications listing only lineal descendants on the 1906 Creek Freedmen

Dawes Roll, and not the Creek By Blood Dawes, despite stated concerns related to the Muscogee

(Creek) Nation Constitution and the Treaty of 1866. As such, the Court finds that the Appellant

Board’s actions were not arbitrary and capricious, with respect to its treatment of the Respondents’

citizenship applications.

Part 2 (b) Unsupported by Substantial Evidence

While the word “substantial” conjures to the mind an extremely high bar to attain, the truth

of the matter is, in an administrative law context, substantial evidence is just “more than a mere

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scintilla[;]”’" just enough evidence necessary to support the Appellant Board’s ultimate

conclusion. In this instance, the Appellant Board was presented two (2) citizenship applications,

33 Trial Transcript, April 5, 2023, Pg. 34, Ln. 1-3.

4 Scintilla is defined as “[a] spark or trace.” Black’s Law Dictionary (12" ed. 2024).

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both providing significant supporting documentation verifying a lineal descendant on the 1906

Creek Freedmen Dawes Roll, but with no supporting documentation supporting a lineal descendant

on the 1906 Creek By Blood Dawes Roll. This lack of supporting evidence linking the applicants

to a Creek by-blood descendant, combined with the Appellant Board’s understanding of the

applicable law (even if flawed) supports the conclusion that the Appellant Board’s actions we

supported by substantial evidence, as that phrase is understood in an administrative law context.

Part 2 (c) Contrary to Law

Article I, Section 2 of the Muscogee (Creek) Nation Constitution provides that the

“political jurisdiction of the Muscogee (Creek) Nation...is based upon those Treaties entered into

by the Muscogee (Creek) Nation and the United States of America[.]” [Emphasis Added].

Additionally, M(C)NCA Title 27, § 1-101 provides that “[t]he authority of the Muscogee (Creek)

Nation...is based upon...[t]he inherent sovereignty of the Muscogee (Creek) Nation and the

Treaties and Agreements between the Muscogee (Creek) Nation and the United States, including

but not limited to the Treaty of 1790 and the Treaty of 1866.” [Emphasis Added]. Finally,

M(C)NCA Title 27, § 1-103 provides that “/iJn all cases, the Muscogee (Creek) Nation Courts

shall apply the Constitution and duly enacted laws of the Muscogee (Creek) Nation, the common

law of the Muscogee people as established by custom and usage, and the Treaties and Agreements

between the Muscogee (Creek) Nation and United States.” [Emphasis Added].

From the perspective of the United States, treaties represent the “supreme Law of the

Land[,]?> and are viewed as “equivalent to an act of the legislature[.]’°° This is particularly

35 Constitution of the United States, Article VI, provides: “This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United

States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding.”

36 Foster v. Neilson, 27 U.S. 253, 314. (January 1, 1829).

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relevant to Indian tribes, as the United States’ Congress retains plenary power*’ over tribal

relations.*® Meaning that, any treaty entered into between the Muscogee (Creek) Nation and the

United States represents an expression of Congress’ plenary power over the tribe. As such, this

Court must carefully review the terms of any applicable treaty with the United States with the

understanding that those treaty terms that have not been specifically abrogated by Congress

represent the law of the land (both under federal and Mvskoke law), and must be followed.

The Appellant, through their various briefs to the Court, and during oral argument,

emphatically claim that they are not asserting Congress has abrogated the terms of the Treaty of

1866 in any way.° *° Instead, the Appellant argues that, because Article II of the Treaty of 1866

does not include specific “words of perpetuity,” such as “forever,” or “permanently,” or “for all

t*' to make changes to its membership requirements in

time,” the Nation therefore retains the righ

the future, including (they argue) subsequently adopting a new constitution that prohibits Creek

Freedmen from citizenship within the Nation.

Again, Article II of the Treaty of 1866 provides:

The Creeks hereby covenant and agree that henceforth neither slavery nor

involuntary servitude, otherwise than in the punishment of crimes, whereof the

3? The Plenary-Power Doctrine is defined as “[t]he principle that Congress possesses broad authority to regulate Indian

tribes and affairs.” Black’s Law Dictionary (12" ed. 2024).

38 See, the “Marshall Trilogy” Johnson v. M’Intosh, 21 U.S. 543. (March 10, 1823); Cherokee Nation v. Georgia, 30

U.S. 1. January I, 1831); Worcester v. Georgia, 31 U.S. 515. (January |, 1832). See also, Lone Wolf v. Hitchcock,

187 U.S. 553, 565. (lanuary 5, 1903).

3° Appellant’s April 4, 2024, Reply Brief states the “Respondents wrongfully contend that the Citizenship Board’s

defense of the Constitution is based on a claim in this appeal by the Citizenship Board that the 1866 Treaty has been

abrogated by the Oklahoma Indian Welfare Act (the “OIWA”), thereby invalidating the Constitution’s requirement

for citizenship. In fact, the Citizenship Board is not claiming that the Treaty has been abrogated by the OIWA or

anything else.”

4° Counsel for the Appellant stated the following during oral argument: “Let’s be clear. We’re not arguing that the

treaty was abrogated. That erases everything you’ ve just heard from our opponents. In fact, we claim the treaty remains

in effect. You never heard us say it was abrogated. We don’t say the department of the interior abrogated it. We don’t

say the Constitution abrogated it.” Recording of June 10, 2025, Oral Argument, at 54:34 to 55:04.

4! “Under Chief Justice Marshall, the [United States] Supreme Court conceptualized an Indian treaty as a grant of

rights from the tribe to the United States, with the tribe reserving for itself all interests not clearly ceded, rather than a

complete capitulation by the tribe.” Cohen Handbook of Federal Indian Law § 2.02[2], pg. 118 (2012 ed.).

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