IN THE MUSCOGEE (CREEK) NATION SUPREME COURT JAN 12 2024
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SUPREME COURT
FILED
IN THE MUSCOGEE (CREEK) NATION SUPREME COURT JAN 12 2024
(
CITIZENSHIP BOARD OF THE ) CONNIE DE ARUAN ly
i
MUSCOGEE (CREEK) NATION, ) MUSCOGEE (CREEK) NATION
) COURT CLERK
Appellant, )
) Case No.: SC-2023-10
v. ) (District Court Case No. CV-2020-34)
)
RHONDA K. GRAYSON and )
JEFFERY D. KENNEDY, )
)
Respondents. )
BRIEF OF APPELLANT
Graydon D. Luthey, Jr., MCNBA #1293; OBA # 5568
R. Trent Shores, MCNBA #1082; OBA # 19705
Barrett L. Powers, MCNBA #1306; OBA # 32485
GABLEGOTWALS
110 N Elgin Ave., Suite 200
Tulsa, OK 74120
Telephone: (918) 595-4800
Facsimile: (918) 595-4990
Email: dluthey@gablelaw.com
tshores@gablelaw.com
bpowers@gablelaw.com
Attorneys for Appellant
TABLE OF CONTENTS
INTRODUCTION |. ccccscnseceeseserserseesseessessesseessecesssessseessecsssasssseesaessseeseseseatesssentenss 1
QUESTIONS PRESENTED 000... eccsccecessecsesscessesscesssessessecesecsecsssssuesseseressecescnsscarsssssees 1
1. Does the Nation’s Sovereign Immunity bar Plaintiffs’ lawsuit seeking only
declaratory and injunctive relief? ........ cc cccscscssessescesesscssesesessssessesesscsessessseseneass 1
2. Does the Nation’s Sovereign Immunity bar Plaintiffs from an action
seeking judicial enforcement of the Treaty Of 1866?.........ccccsssssesssesseeeseteesceeeees 1
3. Does the District Court have jurisdiction under MCNCA Title 7, Sec. 4-
110(B), to conduct an evidentiary trial and rely on material not before the
Citizenship Board in the appellate judicial review of Citizenship Board
decision authorized by Sec. 4-110(B)? ..c..ccccccssccscssscsessscssesscsessecssssssscsssssessesssess 1
4. Did the District Court commit reversible error by cancelling Muscogee
(Creek) Nation Constitution Article III, Sec. 2, and requiring the
Citizenship Board to admit Plaintiffs to citizenship when they admitted
failure to satisfy the constitutional requirement for citizenship in the
Nation? ooo. see sseseeeesecserseeseescteserenscescesesseesessessecsecssssessesessesseesessssssesssesessusaeenesets 1
STATEMENT OF THE CASE... ccccccccccssscsssseescssscssessesecseesecsecseesscnecsecsesaussesseseussevssseseness 2
A Plaintiffs’ loss in federal COUP... cccccecesesesseseesessssessssscsecscescsessesessesecsusesssssssueess 2
B Plaintiffs’ proceedings before the Citizenship Board ..........cccccesscscessstssssseceeeens 2
C. Plaintiffs’ petition in the District Court ......ccccsccsssesssssssesssecsssscsessesessssesseseseeees 3
D Plaintiffs’ unsuccessful Motion for Summary Judgment..............cccccceseseeseeseess 4
E The District Court trial with live witnesses and exhibits that were not
before the Citizenship Board in its administrative proceedings ...........cccccceeeeees 6
1. The admitted failure of Plaintiffs’ satisfaction of constitutional
requirements for CitiZenShip.........ccceeccseseescsssssesessessescseescessesesseeesssessesesssseees 6
2. Expert testimony not offered before the Citizenship Board .............ccccceeees 6
3. Plaintiffs’ motion for judgment as a matter Of LAW... eeecessesesesseeeseesesesessees 7
F. The District Court Opinion ..0..... ces sesccseesceeeseeseesesesseeeessesessssenesseesssesesesseseessense 8
il
ARGUMENT ......ccccccccccscsessssscsscssesessccnecaeesenscesessesaesassaeenesseesaseasenesaseesersnaeesecsecsesessessesaeentenees 11
I: THE NATION IS A SOVEREIGN WHOSE IMMUNITY
PROTECTS ITS CITIZENSHIP BOARD... eccececcsteeseeeseeneeesseneenes 11
Il: IN ITS EXERCISE OF ITS SOVEREIGNTY BY THE NATIONAL
COUNCIL AND THE CHIEF, THE NATION HAS WAIVED THE
CITIZENSHIP BOARD’S SOVEREIGN IMMUNITY ONLY FOR A
REVIEW IN THE DISTRICT COURT UNDER A NARROW
ADMINISTRATIVE LAW STANDARD OF REVIEW OF THE
CITIZENSHIP BOARD’S ADMINISTRATIVE AGENCY ACTION. ........ 12
Ill: THE SOVEREIGN IMMUNITY OF THE NATION CONFERRED
ON THE CITIZENSHIP BOARD IN ITS CREATION BY THE
CONSTITUTION PREVENTS THE DISTRICT COURT FROM
VIOLATING THAT SOVEREIGN IMMUNITY BY CONDUCTING
AN EVIDENTIARY TRIAL FOR INJUNCTIVE AND
DECLARATORY RELIEF AND ENTERING A JUDGMENT
BASED ON THAT TRIAL EVIDENCE uuu. ccccccceeseeseesesseseeeeseeaesesseenees 13
IV: THE DISTRICT COURT VIOLATED THE NATION’S
SOVEREIGNTY BY FAILING TO FOLLOW THE NATIONAL
COUNCIL’S LIMITATION OF A REVIEW OF THE
CITIZENSHIP BOARD’S ORDER TO THE CITIZENSHIP
BOARD’S ADMINISTRATIVE RECORD AND THEN BY
ENTERING AN ORDER BASED ON EVIDENCE AT TRIAL NOT
CONTAINED IN THE ADMINISTRATIVE RECORD ........0....c cece 14
V: BASED ON THE RECORD OF THE ADMINISTRATIVE
PROCEEDINGS RESULTING IN THE CITIZENSHIP BOARD’S
ORDERS DENYING THE CITIZENSHIP APPLICATIONS OF
PLAINTIFFS, THE DISTRICT COURT’S VACATION OF THAT
DENIAL CONSTITUTES REVERSIBLE ERROR UNDER THE
NATIONAL COUNCIL’S STANDARD OF REVIEW OF THE
CITIZENSHIP BOARD’S ORDERS.....0.....ccccccccsssscssesenesseesesseseeessessssacseseees 16
A. The Standard of Review in this Court.......cccccsscssesssssesscsscsscrsesecssessssees 16
B. The legal history giving rise to the Nation’s constitutional
CitiZenship TEQUITEMENE 0... se cceseesecteceeetecesetseeseessesceesessessenseasssseessaeens 17
1. The Treaty period and the 1866 Treaty........ccccccessceesseesseseeseneees 17
2. The post-Treaty, statutory period and attempted termination of
the Nation... cscesssecsenecsecsscseceecesessessessssseesessessesssesesseesseessseesesesens 18
3. The restoration of tribal government power by the Indian
Reorganization Act and the Oklahoma Indian Welfare Act.............. 19
ili
D.
4. The United States, which was party to the 1866 Treaty,
expressly determined that the Indian Nations that were parties
to the 1866 Treaties, could, pursuant to the OIWA, recognize
citizenship in a way that required Indian blood ........... cc ceeeeeseeeenees
5. The Nation’s exercise of its sovereignty in adoption of its
Constitution Of 1979 oo ccceesesscsseessssssscssesesscsssseescsesseesesssseseseees
The 1866 Treaty does not invalidate the membership requirements
contained in the Nation’s Constitution and approved by the United
States ce ccecccccsessceseeseescecseeeseceaeeseesaessesesevsesssesssessesessssesesssseesseseeesessees
1. The language of the 1866 Treaty authorizes the constitutional
provision as to membership adopted with federal approval
pursuant to the OILWA uu... cc eceeseceseeseteessessteesessesesseeresesesaesnenees
2. Ifthe 1866 Treaty and the OIWA are ambiguous and in need of
construction, the Rules of Construction support the
Constitution’s provision as to memberShip..............ccccccscseeessseseseees
3. The purpose of the OIWA is furthered by the Constitution...............
The Nation’s de novo standard of review requires reversal of the
District Court’s Opinion ........cccccescescesessesseescescseecssesecsssasessseessceesesseseeenees
iv
TABLE OF AUTHORITIES
CASES:
Antoine v. Washington,
420 U.S. 194 (1975). cscsssscssseneceseeseeesecsesesecssecsecssecseessessssssessessssesesensessseeesstessessesaeens 18
Cherokee Nation v Georgia,
30 U.S. 1,17 (1831) eee csecssesseesseeseecsscneeeseessecseessessesseecsesesecsesenscsascneseatecseensseaseasess 17
City of Yakima v. Confederated Tribes and Bands of the Yakima Nation,
502 U.S. 251 (1992)... ecccsssesssessesssesesesesseecescessessssessssesssssssacssceeesesesesesenscaesessasesteseeesees 25
Dillner v. Seneca-Cayuga Tribe of Oklahoma,
2011 OK 61 cece cscsessessesecssessessessecseesersesaessesaesnesseseessessessessessessssneseuseeseeesssaeserseesaeens 11
Fletcher v. United States,
116 F.3d 1315 (10th Cir, 1997) oo. ccccsccssecrsesecessssscesesssecsscsesssseseccsscsssssussessssscssenssease 12
Garcia v. Akwesasne Housing Authority,
268 F.3d 76 (2nd Cir. 2001)... cccscsesesesseseecssceeeseseeeeseseeeesesenseeesesssesesecseeessesesscsssesaseeaees 11
Harjo v. Kleppe,
420 F.Supp. 1110 (D. D.C. 1976) ooo eeesesseeesesseceseesscesessecssessesssesseessseseeeneesneens 22, 24
Harjo v. Muscogee (Creek) Election Board,
CV-2007-50 (Muscogee (Creek) 2007.) ......ccsccsscsssscssscessesssceseeessteeseseseeessscsseeesassessessseusess 3
Herrerra v. Wyoming,
587 U.S _ 139 S.Ct. 1686, 203 L.Ed.2d 846 (2019)... ecccscscsscsssesecseessecssecseeseseaseeseees 25
Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.,
523 U.S. 751 (1998)... ce eccseesesseseeseesesesscsceasesenessesceseeseeesessesesseessessesssesssevessesatassessesessesees 13
McGirt v. Oklahoma,
591 U.S. _, 140 S. Ct. 2452, 207 L.Ed.2d 895 (2020)... ceccessccsssesseesssscessesserssscssesersens 10
Michigan v. Bay Mills Indian Community,
572 U.S. 782 (2024) .oceeesecsessesccsscneesecsecsecescesceseesseseessescsscessseseeseesseesessaseseseseaseneeasens 11, 13
Muscogee Creek Indian Freedmen Band, Inc., et al., v. David Bernhardt, et al.,
385 F.Supp.3d 16 (D.D.C., 2019)... eccesssssesesseeseesersecsessessessesesescseessseasesessesascressesseesecsees 2
Muskogee (Creek) Nation of Oklahoma Citizenship Board v. Graham & Johnson,
SC 2006-03 (Muscogee (Creek) 2007) .......cssccssccsseesecesseessesssseseecssessaeseescseceseecesensuss 15, 16
Pennhurst State Sch. v. Halderman,
465 U.S. 89 (1984). ccccsesesscesecsssssssssenscnecsessessssenersecesseneserersessseeseesseeesseeseeeseetaceasensas 1]
Roff v. Burney,
168 U.S. 218, (1897) ..ccccccesscessssssecssesesscsecsssscsessenersesesseneesseeseesseseseeesseeeseeseeesetaeereaesas 23
Santa Clara Pueblo vy. Martinez,
A436 U.S. 49 (1978)... ceesesssessecseenecsecersseetessaesesesessesseeseeersaesaeseesnssessees 11, 23, 24, 26, 27
State ex rel Kolbach v. United States Dept. of Interior,
72. F.4th 1107 (LOth Cir, 2023) occ csccesscsscsesssrsssctessesecsssessesessesasescaeesseseaseseseeneees 14, 16
U.S. v. Stewart,
B11 U.S. 60 (1940) icc ccecscterserersesersessssersessssecsereesesesaeeessessecesseeaseesaseeenesaeerenesseeees 25
Worcester v. Georgia,
31 U.S. 515 (1832) ccc cccecsscsenecnersesessesersecseseeseceeecsesesseeesseuessessaesseeaesesaeereaessesreeeseseees 17
STATUTES AND RULES:
14 Stat. 755 (Treaty with the Seminole) .0.........ccceescsscesscetscesecesseeeesceseesneseseseseeesseees 18, 21
14 Stat. 769 (Treaty with the Choctaw and Chickasaw)..........ccccssccsssssscsssesssessesesssees 18, 21
14 Stat. 785 (Treaty with the Creeks)........ 1, 7,9, 10, 15, 17, 18, 19, 20, 21, 24, 25, 26, 27
14 Stat. 799 (Treaty with the Cherokee)...........c:csccsssesessesssssssseessessesssereseasenseeseesseente 18, 21
27 Stat. 512 (Act of March 3, 1893)... cccccscsssscsccsesssceesesessesseesseessssessesseeesesceesssseseeaes 19
30 Stat. 495 (Act of June 28, 1898) oo eeeeseeeesesseteescteesesseneeecesseessssesenesaeeeeesssseeenses 19
34 Stat. 137 (Act of April 26, 1906) oe eeeeeseceseeseeeeseneesseseeeseeseecenenesseeneenes 3, 6, 19
48 Stat. 1967 (Oklahoma Indian Welfare Act).............. 6, 10, 11, 15, 19, 22, 23, 24, 25, 26
T MCNCA § 4.110. cece cneeecseeeeneeeeeeseeeseereeeaes 1, 3, 4, 5, 6, 8, 9, 12, 14, 15, 16, 26, 27
S U.S.C. § 106. eecccccccccsscssccsessncscnevscsessacseeecersessssesesseneesesessenessesaceesssseeesaseasnesarereeesaseees 16
25 ULS.C. § 7 (Act 0f 1871) oe cccenessesseseeserseeaseeessesseesesecnsesecsesnesseraesaseaesseeseenessreneees 18
25 U.S.C. § 473 ccccscscsessscssenecseercsesscnersenecsseseseeseeecseaeeseeevaseesaeeseseesenseaeeesnesseeeereneeaeetes 19
25 U.S.C. § 5101 (Indian Reorganization ACct).........ccccccscssscesesssscesesessecsssesstesssesseseseeeeees 19
25 U.S.C. § 5201(Oklahoma Indian Welfare Act)......... 6, 10, 15, 19, 20, 22, 23, 24, 25, 26
25 U.S.C. § 5203 ce ececeecsesecseessesecseeaeeessseseesesseeseeaseeessesseesaecascsecsesnessensesaseaseaseatenseaeeaeens 19
vi
Rules of Construction ..........ccccccssccsssscecsssscsscecsssecsestesesseeseseeceateeeaeessaueceaeeessaesenses 10, 24, 25
OTHER AUTHORITIES:
Cohen, Handbook of Federal Indian Law (2012 Ed.)........c.cccccessscsssesceseccssseeessseessteseneees 20
Introduction, in Felix S. Cohen, On the Drafting of the Tribal Constitutions xix-xxix
(U.Ok]la. Press 2007)......:ccssccsssccsscssrecsssccseessreesseesseecseeessssesecssecsaeeeeaeseeseesseecaesaesses 20
Muscogee (Creek) Nation Constitution ..........: cece 1, 2, 3, 6, 9, 10, 15, 11, 22, 23, 25
1 Op.Sol. 1076 (Oct. 1. 1941). eeeeseseneeseneeetecsesseteseerseeseeeeaeees 10, 15, 20, 21, 22, 25
United States Constitution wo... cccccsccsscssssessscsscsecseesecssesssescsesseseseseecseseaseressesseseneesreatens 1
vii
INTRODUCTION
This appeal turns on the sovereignty of the Muscogee (Creek) Nation (the “Nation”’).
At issue is whether the Nation’s sovereign immunity bars claims against the Nation’s Citizenship
Board except for an administrative law appeal of the Citizenship Board’s decision on a citizenship
application. Also at issue is whether the Nation’s sovereignty, expressed by legislation of the
National Council, limits judicial review of a decision of the Citizenship Board to the administrative
record of the proceeding before the Citizenship Board.
Finally, this appeal raises the ultimate issue of sovereignty—whether the Nation has
authority to determine its own citizenship.
Here, the District Court’s Opinion violated the Nation’s sovereignty when that Opinion
canceled the Nation’s Constitution Art. III, Secs 2 and 3 and required Plaintiffs be given
citizenship. The Citizenship Board now asks this Court, on de novo review, to reverse the District
Court’s Order and enter judgment in favor of the Nation’s Citizenship Board.
QUESTIONS PRESENTED
1. Does the Nation’s Sovereign Immunity bar Plaintiffs’ lawsuit seeking only
declaratory and injunctive relief?
2. Does the Nation’s Sovereign Immunity bar Plaintiffs from an action seeking
judicial enforcement of the Treaty of 1866?
3. Does the District Court have jurisdiction under 7 MCNCA, Sec. 4-110(B), to
conduct an evidentiary trial and rely on material not before the Citizenship Board
in the appellate judicial review of the Citizenship Board decision authorized by Sec.
4-110(B)?
4. Did the District Court commit reversible error by cancelling Muscogee (Creek)
Nation Constitution Article II, Sec. 2, and requiring the Citizenship Board to admit
Plaintiffs to citizenship when they admitted failure to satisfy the constitutional
requirement for citizenship in the Nation?
STATEMENT OF THE CASE
A. Plaintiffs’ loss in federal court.
On July 20, 2018, in the United States District Court for the District of Columbia,!
Plaintiffs, as descendants of Creek Freedmen, sought an injunction requiring the Nation to
recognize them as citizens pursuant to the Treaty of June 14, 1866, a treaty between the Nation
and the Unites States, 14 Stat. 785 (the “1866 Treaty”). At the outset, the Court dismissed the case
without prejudice based on Plaintiff's failure to comply with the law by exhausting tribal remedies.
Specifically, the federal court held at Muscogee Creek Indian Freedmen Band, Inc., et al., v. David
Bernhardt, et al., 385 F.Supp.3d 16, 28 (D.D.C. 2019):
Plaintiffs were required to exhaustion (sic) their tribal remedies prior
to bringing suit in this Court. Plaintiffs have not established that
exhaustion should be excused due to the presence of federal
defendants in this lawsuit or due to futility. Accordingly, the Court
DISMISSES WITHOUT PREJUDICE Plaintiffs’ complaint pending
the exhaustion of tribal remedies.
B. Plaintiffs’ proceedings before the Citizenship Board.
Upon the dismissal of their case, Plaintiffs each applied for tribal citizenship to the
Nation’s constitutionally created Citizenship Board.” In June 2019, Plaintiff Grayson filed her
application for citizenship. The Citizenship Board denied the application on July 31, 2019. (R.
'Muscogee Creek Indian Freedmen Band, Inc., et al., v. David Bernhardt, et al., 385 F.Supp.3d
16, 28 (D.D.C. 2019).
2 Constitution of the Muscogee (Creek) Nation of 1979, (the “Constitution”) Art. III, Sec. 1,
(Exhibit A, pertinent portions, to this Brief) which provides:
The Principal Chief shall appoint, subject to majority approval of the Muscogee
(Creek) National Council, a Citizenship Board comprised of five (5) citizens who
shall be charged with the responsibility of the establishment and maintenance of a
Citizenship Roll, showing degree of Muscogee (Creek) Indian blood based upon
the final rolls prepared pursuant to the Act of April 26, 1906 (34 Stat. 137), and
other evidence, as prescribed by ordinance.
2
80, p. 18)? On August 6, 2019, Plaintiff Grayson appealed to the Citizenship Board the denial of
her citizenship application.* On October 30, 2019, the Citizenship Board conducted a hearing.
Plaintiff Grayson failed to meet the requirement imposed by the People, and approved by the
United States, in Constitution Art III, Sec. 2, of a Muscogee (Creek) Indian “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) Indians 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 Indian tribe, nation, band, or pueblo shall not be eligible for
citizenship in the Muscogee (Creek) Nation.)” (The Muscogee (Creek) Nation Constitution is the
Supreme Law of the Land. Harjo v. Muscogee (Creek) Election Board, CV-2007-50 (Muscogee
(Creek) 2007)). On November 5, 2019, the Citizenship Board affirmed the denial of the
application for citizenship. (R. 80, p. 15)
Plaintiff Kennedy followed the same process with the same result on December 12, 2019.
(R. 75, pp. 39 and 64)
C. Plaintiffs’ petition in the District Court.
On March 11, 2020, Plaintiffs initiated suit in the Nation’s District Court, Rhonda K.
Grayson and Jeffrey D. Kennedy v. Citizenship Board of the Muscogee (Creek) Nation of
3 Citations to the Record on Appeal are given as R., document number, and page. Citations to a
transcript are given as R., document number, page/line.
“7 MCNCA § 4.110(A) provides in pertinent part:
Administrative appeal. If certification is denied or if certification is granted but
the applicant disagrees with the Muscogee (Creek) blood quantum on the
membership card, the applicant may appeal the decision within ten (10) days of
receipt of the decision of the Citizenship Board. The burden of proof shall be upon
the applicant, to demonstrate by a preponderance of evidence that he or she is a
Muscogee (Creek) Indian by blood or to prove the correct Muscogee (Creek) blood
quantum for membership purposes.
Oklahoma, Case No. CV-2020-34 (Dt. Ct. MCN). In exercising the Nations’ sovereignty, the
National Council codified judicial appellate review of the administrative law decision of the
Citizenship Board under a deferential standard setting forth limited grounds for that review.”
Plaintiffs’ Petition did not seek judicial review of the Administrative Orders under the National
Council’s express limited standard of judicial review. Instead, Plaintiffs filed a suit for
“declaratory and injunctive” relief. (R. 1, p.15, §§ 81, ef seg.) The Petition asserted only one
“cause of action” that was a “violation of the U.S. Constitution and Federal Law.” (R. 1, p.14) As
a further indication that the suit was not for judicial review of an administrative order, the
Petition’s prayer for relief asked for nine declarations, none of which mentioned the Citizenship
Board’s Orders, and an injunction that also did not mention the Citizenship Board or its Orders.
(R. 1, pp. 15-16)
D. Plaintiffs’ unsuccessful Motion for Summary Judgment.
On December 30, 2020, Plaintiffs moved for summary judgment. (R. 9) In so doing,
Plaintiffs confirmed that their lawsuit was for something other than the judicial appellate review
57 MCNCA § 4-110(B) 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. 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.
of an agency administrative decision as authorized by 7 MCNCA § 4-110(B). The Citizenship
Board opposed summary judgment by asserting that the lawsuit should be confined to the
Citizenship Board’s record of the hearings. (R. 17, pp. 12-22)
In its Order on the Plaintiffs’ Motion, the District Court discussed the procedural history
of the lawsuit. (R. 42, pp. 1-2) In so doing, the District Court did not identify the case as for
appellate judicial review of a Citizenship Board decision pursuant to 7 MCNCA § 4-110(B). Jd.
The District Court expressly noted the Citizenship Board’s objection to summary judgment since
Plaintiffs relied on affidavits which are “new documents not submitted at the time of Plaintiffs’
applications for enrollment, nor part of the administrative record.” (R. 42, p. 4) The District
Court, implicitly recognizing that the lawsuit was not for judicial appellate review of an agency
order, denied the motion. Specifically, the District Court stated:
“Summary judgment should be decided on the facts not in dispute as
shown by evidence which may include among other things deposition
testimony, documentary evidence, etc.” (R. 42, p. 5)
The District Court continued in its Order denying summary judgment by addressing a matter that
should have been provided by Plaintiffs in the administrative record:
“While Defendant admits Ms. Grayson and Mr. Kennedy were
denied enrollment, it denies that any letter was sent to either Plaintiff
citing descending from the Creek Freedmen Roll as the rationale for
denial. This certainly is a genuine issue of material fact upon which
that entire case turns, and clearly it is in dispute.” (R. 42, p. 6)
In spite of that focus on what the District Court had recognized as the administrative
record, the District Court allowed discovery and proceeded to conduct a trial with live testimony
and exhibits beyond the administrative record.
E. The District Court trial with live witnesses and exhibits that were not before
the Citizenship Board in its administrative proceedings.
1. The admitted failure _of Plaintiffs’ satisfaction of constitutional
requirements for citizenship.
At the evidentiary trial, there was no dispute that the Nation’s Constitution, expressly
enacted pursuant to the Oklahoma Indian Welfare Act, 25 U.S.C. § 5201, et seq., Act of June 26,
1936, 48 Stat. 1967 (“OIWA”)® and approved by the United States pursuant to that federal statute,
required a successful applicant for citizenship to show to the Citizenship Board lineal descent
from “those Muscogee (Creek) Indian blood whose names appear on the final rolls proved by the
Act of April 26, 1906 (34 Stat. 137)”.’ Likewise, it was undisputed that neither Plaintiff made
that showing in either their application or appeal to the Citizenship Board.
2. Expert testimony not offered before the Citizenship Board.
Prior to trial, the Citizenship Board moved to strike and exclude an expert witness
proposed by Plaintiffs who was not present nor involved in Plaintiffs’ citizenship proceedings
before the Citizenship Board. The Citizenship Board asserted that such new evidence was
inappropriate in the administrative appeal pursuant to 7 MCNCA § 4-110. (R. 55, p. 1; R. 56, pp.
1-2)
At the trial, the District Court rejected the Citizenship Board’s motion for the Court to
conduct the case as the judicial appellate review contemplated by the National Council in 7
MCNCA § 4-110. The District Court received both oral testimony and a written report from an
° Muscogee (Creek) Nation Const. Art I, Sec. 1 provides:
The name of this Tribe of Muscogee (Creek) people shall be the “Muscogee
(Creek) Nation”, and is hereby organized under Section 3 of the Act of June 26,
1936 (48 Stat. 1967).
7 See, Muscogee (Creek) Nation Const. Art. III, Secs. 2 and 3.
6
adopted child of Choctaw Freedmen descendants who was a law professor. (R. 90, p. 80/15-16)
That “expert” witness was not involved in Plaintiffs’ proceedings before the Citizenship Board
and, in fact, had not read the record of those proceedings. (R. 90, p. 60/21) The witness had not
practiced tribal law as a lawyer and did not teach Indian law in her current employment. (R. 90,
p. 62/20 and p. 63/8) There was no evidence in the record that her work had been peer reviewed.
(R. 90, pp. 4-82) She had served as an appellate judge for the Standing Rock Sioux Supreme
Court. (R. 90, pp. 27/10-13)
She had not served as an expert witness previously. (R. 90, p. 26/16) The law professor’s
sole role was to provide an opinion purely on a legal issue—whether the 1866 Treaty was
abrogated. (R. 90, p. 29/22-25) There was no showing of incapacity or other impediment
preventing the district judge from deciding the legal issue on her own.
The remainder of the evidentiary trial consisted of testimony from Plaintiffs as to the
Citizenship Board’s hearing, Plaintiffs’ lay legal opinions, and questions to the Citizenship Board
members and staff seeking lay legal opinions and invading their deliberation process and attorneyclient privileges. (R. 89 and 91)
3. Plaintiffs’ motion for judgment as a matter of law.
At the end of Plaintiffs’ case, the District Court again demonstrated that it was not
conducting an appellate judicial review of an administrative agency decision. Plaintiffs moved
for judgment as a matter of law. (R. 89, p. 87/1-3) The District Court then indicated that it needed
to resolve factual conflicts arising from the evidence received at the trial, a clear function of a
trial, rather the judicial appellate review of an agency decision. Further, rather than perform the
sole applicable function of reviewing the record of the Citizenship Board for legal error under the
limited standard of appellate review provided by the National Council, the District Court focused
on Plaintiffs’ trial evidence and denied the Motion for Judgment as a matter of law by stating:
“I’m going to overall (sic) your motion. I do think we need to hear
from the defendants (sic) to see if they (sic) can put forth the evidence
to support their (sic) position. There is a contested issue here. So I’m
going to say your motion is overruled and will continue with the trial.
(R. 89, p. 92/20-25)
F. The District Court Opinion.
On September 27, 2023, the District Court filed an “Order and Opinion on Approval from
the Citizenship Board of the Muscogee (Creek) Nation Denial of Creek Freedmen Citizenship
Applications” (the “Opinion”). (R. 111) In the Opinion, the District Court went beyond the
appellate function of judicial review of agency action. The Opinion referred to and relied upon
testimony and exhibits at trial that were not part of the record before the Citizenship Board on
which record an appellate judicial review would have been conducted. (R. 111, p. 4, fn. 6,
referencing an affidavit of Plaintiffs affixed to their denied Motion for Summary Judgment, p. 2,
fn. 2, referencing trial testimony; p. 5 referencing witness testimony and direct evidence were
presented at trial; pp. 9-11; trial testimony, p. 11 referencing unidentified “substantial additional
documents;” and pp. 12-14 witness testimony of the Citizenship Board’s deliberation process not
in the administrative record of the Citizenship Board hearings)
At page 5 of the Opinion, the District Court described the Petition that began the lawsuit.
R. 111, p. 5) Omitted from the Court’s description was the fact that the Petition expressly sought
injunctive relief. The Opinion failed to mention that the Petition asserted only one “cause of
action” which was not to “set aside, modify or remove” the Citizenship Board’s decision, (the
only relief authorized by the National Council in 7 MCNCA § 4-110(B)), but rather was for
“violation of the U.S. Constitution and Federal Law.” (R. 111)
In articulating the standard of review that it intended to apply to the new evidence at trial,
the Opinion quoted the portion of § 4-110(B) that effectively limits the District Court’s review to
the record of the administrative process before the Citizenship Board. The Opinion omitted the
mandate of the National Council in § 4-110(B) that:
“In hearing the appeal, the Muscogee Nation District Court shall give
proper deference to the administrative expertise of the Citizenship
Board.”
The Opinion went beyond the administrative record and reached contradictory conclusions.
First, the Opinion defined the National Council’s “arbitrary and capricious” standard of appellate
judicial review, set out in § 4-110(B) as requiring the Citizenship Board action to be “in disregard
of law.” (R. 111, p. 7) In applying that standard, the Opinion expressly found that the Citizenship
Board’s decisions were not arbitrary and capricious. (R. 111, pp. 9-10) Accordingly, the
Citizenship Board’s decision did not disregard the law in deciding that the Nation’s Constitution’s
blood requirement legally controlled Plaintiffs’ citizenship applications.
Having decided that the Citizenship Board’s decision was not “in disregard of law,” the
Opinion then found that the Citizenship Board’s decision was unsupported by substantial evidence.
(R. 111, p.10) The Opinion stated that the applications were supported by “voluminous
2
documentation.” The Opinion did not describe that documentation. The District Court
acknowledged as undisputed that Plaintiffs offered no evidence to the Citizenship Board that they
could satisfy the Nation’s constitutional requirement for citizenship of tracing lineage back to the
Creek by blood rolls. (R. 111, pp. 10-11)
The Opinion then relied on the trial testimony of Plaintiffs, Plaintiffs’ “expert,” and
Citizenship Board personnel, including the legal opinions of non-lawyers. (R. 111, pp. 13-14)
After having previously found that the Citizenship Board did not disregard the law, the Opinion
concluded that the Citizenship Board disregarded the law (the 1866 Treaty) by denying the
citizenship applications of Plaintiffs who had admitted that they could not satisfy the lineage
tracing membership requirement of the Nation’s Constitution. (R. 111, p. 14)
The Opinion did not mention the 1866 Treaty’s express authorization of future legislation,
the OIWA invocation in Plaintiffs’ Petition, the provisions of the OIWA, or the U.S. Solicitor of
the Interior 1941 Opinion® effectively approving the constitutional membership requirements that
controlled the Citizenship Board’s decisions and implicitly rejected Plaintiffs’ arguments. The
Opinion did not discuss the fact that the United States, which was the counterparty to the 1866
Treaty, expressly approved the Nation’s Constitution lineage tracing requirement for citizenship.
The Opinion did not attempt to reconcile the federally-approved Nation’s Constitution with the
1866 Treaty. Rather, the Opinion relied upon the inadmissible legal opinion of a Choctaw
Freedmen descendants’ adoptee to invalidate the Nation’s Constitutional requirement for
membership.’ The Opinion did not discuss any Indian Rule of Construction or any other rule of
construction.
Although the Opinion had determined that the Citizenship Board’s administrative law
decisions did not disregard the law, the Opinion, based on new evidence at trial, then found that
the Citizenship Board’s decision was contrary to law. The District Court, citing no decision from
this Court or any other appellate court addressing the OIWA or the 1866 Treaty, effectively held
that the 1866 Treaty cancelled the Nation’s Constitution’s Article III, Secs. 2 and 3, which had
been enacted by a vote of the Muscogee (Creek) membership and approved by the United States.
The District Court then effectively reversed the Citizenship Board’s constitutionally mandated
8 1 Op.Sol. 1076 (Oct. 1, 1941) (M-Opinion).
? The Opinion also invoked McGirt v. Oklahoma, 591 U.S. _, 140 S. Ct. 2452, 207 L.Ed.2d 895
(2020), which did not address the Nation’s citizenship. (R. 111, p. 9)
10
decision and required that Plaintiffs be granted citizenship in the Nation, their admitted failure to
satisfy the Nation’s constitutional requirements notwithstanding. (R. 111, pp. 13-14)
The Citizenship Board now appeals.
ARGUMENT
I: THE NATION IS A SOVEREIGN WHOSE IMMUNITY PROTECTS ITS
CITIZENSHIP BOARD.
The Nation, a federally-recognized Indian tribe, is a sovereign with inherent sovereign
authority. Michigan v. Bay Mills Indian Community, 572 U.S. 782, 788 (2014). As a sovereign, it
enjoys sovereign immunity that protects it from suit. Jd. That immunity is “a necessary corollary
to Indian sovereignty and self-governance.” Jd. Any suit against a tribe is to be dismissed absent
congressional authorization or waiver. /d. at 789. Waiver of sovereign immunity cannot be implied
but must be unequivocally expressed. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). A
valid waiver is determined under tribal law. See Dillner v. Seneca-Cayuga Tribe of Oklahoma,
2011 OK 61, § 13. For a waiver to be valid, it must be embodied in the Nation’s Constitution or in
an act of the National Council and signed by the Chief. Such a waiver by the Nation is indisputably
an exercise of the Nation’s sovereignty, as is its absence.
The immunity of a sovereign has two distinct components. Initially, in the absence of
express waiver by the sovereign or Congress, the sovereign is immune from suit asserting a claim
against it. Secondly, even in the event of waiver of immunity from suit as to particular claim,
immunity protects the sovereign from suit on the claim in any court for which immunity has not
been expressly waived. See, Pennhurst State Sch. v. Halderman, 465 U.S. 89 (1984); Garcia v.
Akwesasne Housing Authority, 268 F.3d 76, 89 (2nd Cir. 2001).
11
An Indian nation’s sovereign immunity extends to its tribal governmental actors. See,
Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir. 1997) (a tribe’s immunity generally
immunizes tribal officials from claims made against them in their official capacities).
Accordingly, the Nation’s constitutionally created Citizenship Board enjoys sovereign
immunity as to claims and suits in the Nation’s courts unless expressly waived by the Constitution
or the National Council and approved by the Chief.
II: IN ITS EXERCISE OF ITS SOVEREIGNTY BY THE NATIONAL
COUNCIL AND THE CHIEF, THE NATION HAS WAIVED THE
CITIZENSHIP BOARD’S SOVEREIGN IMMUNITY ONLY FOR A
REVIEW IN THE DISTRICT COURT UNDER A NARROW
ADMINISTRATIVE LAW STANDARD OF REVIEW OF THE
CITIZENSHIP BOARD’S ADMINISTRATIVE AGENCY ACTION,
The Citizenship Board and its powers were created by the Constitution and by the National
Council and the Chief together exercising the Nation’s sovereignty in enacting 7 MCNCA § 4-
110. In so doing, the Nation did not generally waive the Citizenship Board’s sovereign immunity
as to claim or forum. In specifying how the Citizenship Board is to exercise the Nation’s
sovereignty, the National Council provided a limited express waiver of immunity in the
administrative law context. 7 MCNCA § 4-110(B) allows an appeal of the Citizenship Board’s
decision of an application for citizenship. Specifically, the National Council required that the
District Court, as the appellate forum, properly defer to the expertise of the Citizenship Board:
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. In
hearing the appeal, the Muscogee Nation District Court shall
give proper deference to the administrative expertise of the
12
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) No other waiver of the Citizenship Board’s sovereign immunity allows suit
against the Citizenship Board for any other claims in any other type of action in the District Court.
Accordingly, the Citizenship Board is immune from all other claims of the Plaintiffs’ Petition.
II: THE SOVEREIGN IMMUNITY OF THE NATION CONFERRED ON
THE CITIZENSHIP BOARD IN ITS CREATION BY THE
CONSTITUTION PREVENTS THE DISTRICT COURT FROM
VIOLATING THAT SOVEREIGN IMMUNITY BY CONDUCTING AN
EVIDENTIARY TRIAL FOR INJUNCTIVE AND DECLARATORY
RELIEF AND ENTERING A JUDGMENT BASED ON THAT TRIAL
EVIDENCE.
Plaintiffs expressly sought declaratory and injunctive relief from the District Court. Those
types of claims, if they survive legal challenges on the pleadings or at summary judgment, result
in evidentiary trials on the merits. Those claims are not an action for appellate judicial review on
an administrative record of an order by an administrative agency, the only action over which the
District Court has subject matter jurisdiction.’ Specifically, the Nation has not waived the
sovereign immunity enjoyed by the Citizenship Board to allow the District Court to conduct an
evidentiary trial as to anything involving Orders of the Citizenship Board. By so proceeding and
utilizing the evidence from the trial the District Court violated the Nation’s sovereignty, violated
the sovereign immunity of the Citizenship Board, and acted without subject matter jurisdiction.
'° A court lacks subject matter jurisdiction by proceeding against a party with sovereign immunity
unless that sovereign immunity has been expressly waived. See, Michigan vy. Bay Mills Indian
Community, 572 U.S. 782, 789 (2014), citing Kiowa Tribe of Oklahoma v. Manufacturing
Technologies, Inc., 523 U.S. 751, 756 (1998).
13
That lack of subject matter jurisdiction to conduct any evidentiary trial on claims for injunctive
and declaratory relief and then base its judgment on that evidentiary trial requires reversal of the
judgment.
IV. THE DISTRICT COURT VIOLATED THE NATION’S SOVEREIGNTY
BY FAILING TO FOLLOW THE NATIONAL COUNCIL’S LIMITATION
OF A REVIEW OF THE CITIZENSHIP BOARD’S ORDER TO THE
CITIZENSHIP BOARD’S ADMINISTRATIVE RECORD AND THEN BY
ENTERING AN ORDER BASED ON EVIDENCE AT TRIAL NOT
CONTAINED IN THE ADMINISTRATIVE RECORD.
The scope of an appeal, oftentimes called “judicial review” in the context of administrative
agency orders, is limited by the statute authorizing the appeal. Statutes typically establish the
standard of judicial review of administrative proceedings. Judicial review of an administrative
agency order is ordinarily limited to the record before the agency. As explained in State ex rel
Kolbach vy. United States Dept. of Interior, 72 F.4th 1107, 1126 (10th Cir. 2023,) in upholding a
district court’s striking of an expert’s new affidavit not offered in the agency proceeding:
New evidence in the form of after-the-fact expert rebuttal
evidence is not allowed. “We have permitted courts to supplement
administrative record in ‘extremely limited’ circumstances. Jd.
Those circumstances have not included allowing parties to introduce
after-the-fact expert rebuttal evidence. Lee v. U.S. Air Force, 354
F.3d 1229, 1242 (10th Cir. 2004) (affirming ruling to strike extrarecord affidavit where affidavit ‘simply presents an expert opinion
conflicting with the U.S. Air Force’s conclusion’). To permit that
rebuttal would subvert our standard of review, which asks whether
the Secretary acted arbitrarily and capriciously based on the
administrative record before it—not whether new evidence defeats
the Secretary’s prior reasoning.” Jd.
(Emphasis added)
The National Council’s use of the word “deference” in its standard of review in 7 MCNCA
§ 4-110(B) makes the point. That which is entitled to deference is an act of the Citizenship Board—
the issuance of the Order at issue. That deference only makes sense if it is applied to the Order,
14
which occurred at a specific prior time and was based on the record as it existed at that prior time.
If not, the whole process of review, including what is to be reviewed, and the record on which it
was based, collapses into merits-based, judicial activism embodied in an evidentiary court trial
supporting the administrative action and is totally separated from the concept of de novo judicial
review required by this Court in Muskogee (Creek) Nation of Oklahoma Citizenship Board v.
Graham & Johnson, SC 2006-03 (Muscogee (Creek) 2007).
Here, the judgment makes clear that the court did not follow the legislatively-mandated,
restricted judicial review. The court considered and premised its opinion on evidence not before
the Citizenship Board, including an after-the-fact “expert” testimony and report, and testimony
from the Citizenship Board membership and staff as to deliberation process.!! (R. 111, pp.9-14)
Accordingly, that District Court’s reception of and reliance on evidence not before the
Citizenship Board violated the National Council’s limitation of judicial review to the record before
the Citizenship Board. See § 4-110(B). The District Court’s actions constitute reversible error and
requires reversal of the District Court’s judgment.
|! The testimony and report of the “expert,” in addition to being inadmissible in a judicial appellate
review of the Citizenship Board’s Orders, were rendered useless by the “expert’s” omission. The
“expert” witness (a) did not address the express language of the 1866 Treaty between the Nation
and the United States that made the treaty subject to future legislation by Congress, (b) did not
analyze the impact of the OIWA on the Treaty language as to future legislation, and (c) did not
discuss any rules of construction requiring the 1866 Treaty and the Nation’s Constitution to be
read to give effect to both. The witness omitted in her testimony and written report the October 1,
1941 Opinion of the Solicitor of the Department of the Interior that “As the Oklahoma Welfare
Act constitutes the basis for complete reorganization of the Oklahoma tribes, the Five Civilized
Tribes have full authority to reorganize their membership on a new basis excluding the Freedmen.”
15
V. BASED ON THE RECORD OF THE ADMINISTRATIVE PROCEEDINGS
RESULTING IN THE CITIZENSHIP BOARD’S ORDERS DENYING THE
CITIZENSHIP APPLICATIONS OF PLAINTIFFS, THE DISTRICT
COURT?’S VACATION OF THAT DENIAL CONSTITUTES
REVERSIBLE ERROR UNDER THE NATIONAL COUNCIL’S
STANDARD OF REVIEW OF THE CITIZENSHIP BOARD’S ORDERS.
A. The Standard of Review in this Court.
The de novo standard governs this Court’s review of the Opinion’s substantive cancellation
of the constitutional citizenship requirements. See, Muscogee (Creek) Nation of Oklahoma
Citizenship Board v. Graham & Johnson, SC 2006-03 (Muscogee (Creek) 2007). That standard
is consistent with the standard generally used by appellate courts to evaluate district court review
of an administrative agency order. In State ex rel Kolbach v. Department of Interior, the Tenth
Circuit explained the operation of the standard in the procedural context here:
And we review a district court's rulings on agency actions de novo.
Pub. Lands Council v. Babbitt, 167 F.3d 1287, 1293 (10th Cir. 1999)
(citation omitted). To that end, ““we owe no deference to the district
court's decision.” Sac & Fox Nation, 240 F.3d at 1260. Indeed, “in
reviewing a district court's review of an agency decision, the
identical standard of review is employed at both levels; and once
appealed, the district court's decision is accorded no particular
deference.” Valley Camp of Utah, Inc. v. Babbitt, 24 F.3d 1263,
1267 (10th Cir. 1994) (citations and internal quotation marks
omitted). And we will not disturb agency action unless it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
In otherwords, as a legal matter here, in this Court it is as if the District Court decision on
the merits never happened. This Court, itself, reviews the Citizenship Board’s denials of the
applications under the limited statutory standard in § 4-110(B). Unless the Plaintiffs demonstrate
in this Court that the Citizenship Board’s Orders were arbitrary and capricious, unsupported by
substantial evidence, or contrary to law, the Citizenship Board’s decision must be affirmed.
16
B. The legal history giving rise to the Nation’s constitutional citizenship
requirement.
The historical legal context giving rise to the Constitution provision cancelled by the
Opinion should further this Court’s effective judicial review of the Citizenship Board’s action.
After that review, application of controlling legal principles demonstrates that Plaintiffs cannot
carry their burden in this Court to invalidate the Constitution expressly approved by the
counterparty to the 1866 Treaty.
1. The Treaty period and the 1866 Treaty.
The United States Constitution recognizes the sovereign equality that Indian Nations share
with the United States by authorizing treaties between the Nations and the United States.!* Even
though the United States Supreme Court announced in Cherokee Nation v Georgia, 30 U.S. 1, 17
(1831), that the Court considered tribal Nations “domestic dependent nations,” the Court in
Worcester v. Georgia, 31 U.S. 515, 559 (1832), recognized that such relationship did not abolish
pre-existing tribal powers or make the tribes dependent on federal law for inherent powers of selfgovernment. The United States continued to deal with the Nations by treaty for decades.
In the 1866 Treaty, the Creeks recognized Freedmen as citizens:
...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 Creek country under their laws
and usages, or who have been thus 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,
'2 United States Constitution Art. 8 provides that Congress shall have power “[t]o regulate
commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
17
and all others, of whatsoever race or color, who may be adopted as
citizens or members of said tribe.
Article 2, 1866 Treaty. (Exhibit B to this Brief)
The Treaty continued by specifically providing that terms of the Treaty may be modified by Act
of Congress:
The Creeks agree to such legislation as Congress and the President
of the United States may deem necessary for the better administration
of justice and the protection of the rights of person and property
within the Indian territory: Provided, however, [That] said legislation
shall not in any manner interfere with or annul their present tribal
organization, rights, laws, privileges, and customs.
Article 10, 1866 Treaty.
2. The post-Treaty, statutory period and attempted termination of the
Nation.
After the post-Civil War Treaties of 1866,!? Congress prohibited the making of any further
treaties with Indian Nations and Tribes. 25 U.S.C. § 7 (the Act of 1871). The prohibition as to
future treaties apparently was premised on dissatisfaction by the federal House of Representatives
of its exclusion from the Treaty process of formulating and implementing federal policy toward
Indian Nations and Tribes. Antoine v. Washington, 420 U.S. 194, 202 (1975) (“the Act of 1871
resulted from the oppression of the House of Representatives.”) When the treaty period of bilateral
negotiation with the Nations and Tribes ended, the United States dealt with the Nations and Tribes
unilaterally by statute. See id. at 201-204.
This unilateral approach was used to impose an assimilationist agenda that for the
Muscogee (Creek) Nation culminated in the allotment and termination legislation of the 1890s and
'S The 1866 Treaty with the Choctaw and Chickasaw, proclaimed on July 10, 1866. Treaty with
the Cherokee, proclaimed on August 11, 1866. Treaty with the Seminole, proclaimed on August
16, 1866 (collectively, the “1866 Treaties”).
18
1900s."
3. The restoration of tribal government power by the Indian
Reorganization Act and the Oklahoma Indian Welfare Act.
In the late 1920s and 1930s, the United States reversed its assimilation/termination policy
in favor of tribal revitalization and self-governance. The paramount embodiment of this new policy
was the Indian Reorganization Act, 25 U.S.C. § 5101 et seq. (formerly cited as 25 U.S.C. § 461,
et seq., of 1934) (the “IRA”). However, the IRA expressly excluded from its application the
Muscogee (Creek) Nation along with the Cherokee, Chickasaw, Choctaw, and Seminole Nations.
25 U.S.C. § 473.
In order to expand its self-governance policy embodied in the IRA to the Five Tribes, the
United States, through its Congress and President, enacted the Oklahoma Indian Welfare Act, 25
U.S.C. § 5201 (formerly cited as 25 U.S.C. § 501) (the “OIWA”), as authorized by the Treaty of
1866. The OIWA expressly recognized the right of Oklahoma tribes to adopt a constitution and
bylaws:
Any recognized tribe or band of Indians residing in Oklahoma shall
have the right to organize for its common welfare and to adopt a
constitution and bylaws, under such rules and regulations as the
Secretary of the Interior may prescribe. The Secretary of the Interior
may issue to any such organized group a charter of incorporation,
which shall become operative when ratified by a majority vote of the
adult members of the organization voting: Provided, however, That
such election shall be void unless the total vote cast be at least 30 per
centum of those entitled to vote.
25 U.S.C. § 5203.
The Secretary of the Interior issued regulations requiring any constitution authorized by
OIWA be approved by the Secretary of the Interior or a secretarial designee. To assist in that
'4 See, Act of Mar. 3, 1893, §16, 27 Stat. 512; Act of June 28, 1898, §§ 11-17, 22-23, 30 Stat. 495;
and Act of Apr. 26, 1906, 34 Stat. 137.
19
federal approval process, the federal government, through the Bureau of Indian Affairs, issued
model form constitutions for tribal consideration and adoption.'°
4. The United States, which was party to the 1866 Treaty, expressly
determined that the Indian Nations that were parties to the 1866
Treaties, could, pursuant to the OIWA, recognize citizenship in a way
that required Indian blood.
The United States specifically recognized that re-organization under the Oklahoma Indian
Welfare Act gave full authority to the Five Civilized Tribes to recognize their membership on a
new basis which may exclude Freedmen as long as Freedman were allowed to vote on the
acceptance of a constitution. On October 1, 1941, the Solicitor of the Department of the Interior
issued an Opinion entitled “Five Civilized Tribes — Status of Freedmen — Organization Under
Oklahoma Welfare Act.” 1 Op.Sol 1076 (Oct. 1, 1941) (M-Opinion) (Exhibit C to this Brief). The
Opinion addressed two questions:
i. Are the Freedmen of the Five Civilized Tribes entitled to vote on
the acceptance of a constitution in pursuance of section 3 of the
Oklahoma Welfare Act?
ii. Would it be admissible under the act to adopt a constitution
containing provisions whereby Freedmen who might be on the
rolls would and could be eliminated?
In answer to those questions, the Solicitor held:
i. The Freedmen having been admitted by treaties and formal tribal
actions as full-fledged members in all of the Five Civilized Tribes
excepting the Chickasaw Nation, they have the right to vote on
any constitution to be adopted by these tribes under the Oklahoma
Welfare Act.
ii. As the Oklahoma Welfare Act constitutes the basis for complete
reorganization of the Oklahoma tribes, the Five Civilized Tribes
'S According to Cohen, Handbook of Federal Indian Law (2012 Ed.), § 4.04[3][a], p. 257, n. 20,
“agents ultimately presented tribes with a variety of examples of Tribal Constitutions.” David E.
Wilkins, Introduction in Felix 8. Cohen, On the Drafting of Tribal Constitutions, xix-xxix (U.
Okla. Press 2007).
20
have full authority to reorganize their membership on a new basis
excluding the Freedmen.
In so holding, the Solicitor of the Department of the Interior stated in pertinent part:
The Freedmen were adopted as full members into the Cherokee, the
Choctaw, the Seminole, and the Creek Tribes pursuant to the treaties
of July 19, 1866 (14 Stat. 799) (Cherokee), April 28, 1866 (14 Stat.
769) (Choctaw), June 14, 1866 (14 Stat. 785) (Creek), and March 21,
1866 (14 Stat. 755) (Seminole)... The Freedmen thus having been
made full-fledged members of four of the five tribes which in
accordance with various acts of Congress granted them all rights of
citizenship in the Nations, including the right of suffrage
(see Whitmire v. Cherokee Nation et al., 30 Ct. Cl. 138 at
157; Choctaw and Chickasaw Nations v. United States, 81 Ct. Cl.
63; Opinion of Secretary of the Interior of August 9, 1898, .No.
15030-1913, JED), the Freedmen are entitled to vote on any
constitution along with all other members of these tribes.... As in the
case of these four tribes clear action had been taken to make the
Freedmen full citizens, these Freedmen have in principle the right to
vote on any proposed constitution to be adopted under the Oklahoma
Welfare Act.
TR
The question whether Freedmen now citizens of various Nations
of Oklahoma may be excluded by appropriate provisions in
constitutions to be adopted by these Nations pursuant to the
Oklahoma Welfare Act must be answered in the affirmative. The
Oklahoma Welfare Act represents a turning point in the organization
of Indian tribes. A new type of organization on a new basis is
provided by this act. It thus takes its place beside the various treaties
of 1866 which after the end of the Civil War similarly provided for a
new organization of the Five Civilized Tribes on a new membership
basis. With the consent of Congress and pursuant to these treaties the
tribes resolved to modify their membership basis and to include a
large number of Freedmen who thus became Indians by law only. It
would appear that the tribes should be able to modify their
membership once more and, having obtained the consent of Congress
through the Oklahoma Welfare Act, to arrange their membership and
other affairs in a constitution to be adopted by their free vote. They
are thus entitled to decide that in the future only Indians by blood
shall be members of the new tribal organization that is to come into
being by adoption of these constitutions. A number of Indian tribes
have incorporated similar provisions in their constitutions in order to
limit membership to persons of Indian blood. Among these are the
Cheyenne River Sioux Tribe of South Dakota, the Quileute Tribe of
21
the Quileute Reservation, Washington, and the Kialogee Tribal Town
of Oklahoma. The customary provision reads as follows:
“The membership of the *** Tribe shall consist of the
following:
(a) All persons of Indian blood whose names appear on
the official census roll of the tribe as of June 18, 1934.
(b) All children born to any member of the *** Tribe
who is a resident of the reservation at the time of the birth
of said children.”
Such a provision has the effect of dropping from tribal rolls those
members who cannot satisfy the Indian-blood requirement. Such
exclusion from membership does not interfere with any vested
individual rights, such as title to allotted land, but does deprive
the Freedmen so excluded of benefits arising in the future out of
tribal membership.
1 Op.Sol 1076 (Oct. 1, 1941) (emphasis added). (Attached to this Brief as Exhibit C)
Consistent with the Solicitor’s Opinion, in Harjo v. Kleppe, 420 F.Supp. 1110, 1137 (D.
D.C. 1976), the Court recognized the United States’ position that a new Muscogee (Creek)
Constitution could be adopted under the OIWA which excluded freedmen from tribal membership
if freedmen were allowed to vote on that provision:
In reply, the office of the Commissioner of Indian Affairs stated that
no funds would be approved for a tribal organization which was not
approved under the provisions of the Act, and pointed out that the
new constitution could not be approved under the Act because the
new governing document excluded the freedmen from membership
in the tribe without having given them an opportunity to vote on that
provision.
5. The Nation’s exercise of its sovereignty in adoption of its Constitution
of 1979.
Consistent with the view of the United States published in the 1941 Solicitor’s Opinion
and further noted by the Court in Harjo, supra, the Muscogee (Creek) Nation in 1979 adopted its
Constitution. The Constitution expressly recognizes that its enactment is pursuant to the O[WA:
22
The name of this Tribe of Muscogee (Creek) people shall be the
“Muscogee (Creek) Nation”, and is hereby organized under Section
3 of the Act of June 26, 1936 (48 Stat. 1967).
Constitution Art. 1, Section 1. Pursuant to the OIWA, that Constitution was approved by the United
States. (See approval page of Constitution)
The power of an Indian tribe to determine issues of its own membership is organic and
immutable. That existential power goes to the very essence of a tribe’s identity and existence. The
United States Supreme Court in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72, n.32 (1978),
stated:
“[a] tribe’s right to define its own membership for tribal purposes
has long been recognized as central to its existence as an
independent political community.”
In so stating, the Supreme Court affirmed a tribe’s power to confer and withdraw citizenship,
consistent with its decision over 125 years ago in Roffv. Burney, 168 U.S. 218, 222 (1897).
In its federally-approved Constitution, the Nation, through the electorate, exercised its
sovereign, existential, right to determine the qualifications for membership. As recognized in the
Solicitor’s Opinion as is the case for many Indian nations or tribes, the Nation’s Constitution
Article III, Sec. 2, requires a blood quantum for citizenship:
Person 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) Indians 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 Indian tribe, nation, band, or pueblo shall
not be eligible for citizenship in the Muscogee (Creek) Nation.
Additionally, the Nation, in an exercise of its sovereignty, in Constitution Article III, Sec.
4, requires a specific blood quantum for office holders:
Full citizenship in the Muscogee (Creek) Nation shall be those
persons and their lineal descendants whose blood quantum is one-
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.