IN THE MUSCOGEE (CREEK) NATION SUPREME COURPREME COURT

IN THE MUSCOGEE (CREEK) NATION SUPREME COURPREME COURT

CITIZENSHIP BOARD OF THE

MUSCOGEE (CREEK) NATION,

Appellant,

vs.

RHONDA K. GRAYSON and

JEFFERY D. KENNEDY,

Respondents.

FILED

MAR 12 2021 ao

CONNIE DEARMAN

MUSCOGEE (CREEK) NATION

Case No.: SC-2023-10 COURT CLERK

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

Nee ee ee Ye” Ne” ee Ne Ne Ne”

RESPONDENT’S BRIEF

Damario Solomon-Simmons, MCN # 354

Kymberli J.M. Heckenkemper, MCN # 1253

SOLOMONSIMMONSLAW, PLLC

601 S. Boulder Ave., Ste. 602

Tulsa, Oklahoma 74119

918-551-8999 — Phone

918-558-8039 — Facsimile

dss@solomonsimmons.com

kheckenkemper@solomonsimmons.com

M. David Riggs, MCN # 1239

Riccs, ABNEY, NEAL, TURPEN

ORBISON & LEWIS, P.C.

502 West 6th Street

Tulsa, Oklahoma 74119

(918) 587-3161 — Phone

(918) 587-9708 — Facsimile

driggs@riggsabney.com

Attorneys for Respondents

IN THE MUSCOGEE (CREEK) NATION SUPREME COURT

CITIZENSHIP BOARD OF THE )

MUSCOGEE (CREEK) NATION, )

)

Appellant, )

) Case No.: SC-2023-10

VS. ) (istrict Court Case No. CV-2020-34)

)

RHONDA K. GRAYSON and )

JEFFERY D. KENNEDY, )

)

Respondents. )

RESPONDENT’S BRIEF

Damario Solomon-Simmons, MCN # 354

Kymberli JM. Heckenkemper, MCN # 1253

SOLOMONSIMMONSLAW, PLLC

601 S. Boulder Ave., Ste. 602

Tulsa, Oklahoma 74119

918-551-8999 — Phone

918-558-8039 — Facsimile

dss@solomonsimmons.com

kheckenkemper@solomonsimmons.com

M. David Riggs, MCN # 1239

RIGGS, ABNEY, NEAL, TURPEN

ORBISON & LEWIS, P.C.

502 West 6th Street

Tulsa, Oklahoma 74119

(918) 587-3161 — Phone

(918) 587-9708 — Facsimile

driggs@riggsabney.com

Attorneys for Respondents

TABLE OF CONTENTS

INTRODUCTION oo. ceccessescseessecneceeseeseeseesessessesseeacseeseeesesssecesessecessesseascsesseesecsseeeseseeseeseasenss ]

STATEMENT OF THE ISSUES... ccseecscecceeeteessserscnccseeeeeesseseseesseseesesaesseeseessesecssseesessesaeas 2

SUMMARY OF THE HISTORICAL RECORD 0... ececesssssssesessesetseseesesesessesecseeesecasseeneeesseseeases 3

STATEMENT OF THE CASE wu. ccc ees essceeeseeseseeseeessessesenceeesaeecsesecsecsessesscsessesecaesecsesesseeseeaesees 6

A. Proceedings Before the Citizenship Board ........cccccececessessessesseecesseeseseesesees 7

B. Respondents’ Petition in the District Court ........:ceecsssesessssessesssseseeseseeseseesees 8

Co The Triad occ eceeceeesesseeeecsesecsessessessesseseeseceescaessesseseessecsesaeeeeeaeesesseeaeeees 8

D. — The District Court’s Opinion oe... ee eeeeecseeeeseceeeseeseeseceeseessessseseaeeseeseeseeaes 9

STANDARD OF REVIEW uuu... ccccsccssesseeeseeseesesseeaeeaessessessesacsecseseeessecsessessecsecseeaesaserecateaseaees 10

ARGUMENT uo cccesscnecneenseeseeseeseesecseeseeaessesaeesessecseeaessesesseeecsscsescsecaeesecaeeaseaecessecsesaneeateass 10

I. The Citizenship Board’s Denial of Citizenship to Respondents was Arbitrary

and Capricious, Without Substantial Evidence, and Contrary to the Law............. 1]

A. Article 2 of the Treaty of 1866 Remains in Force. .......ccccessssssessesseeseeseeeees 14

B. The Board’s Denial of Citizenship Violated Federal and MCN

Principles of Treaty Interpretation, Application, and Precedent. ................. 19

II. The Nation Has Waived its Sovereign Immunity On At Least Two Applicable

Occasions. And The Question Presented In This Case Is One Of law, Which

This Court Reviews De NOVO. ..iccccccscssssssseseeseesesessetecseesceeeseeseseesseeseesesessseecseerseees 27

CONCLUSION Qo. cc cesseseceeesccseeeeeesececsesaesaesseesecseeseesecseesesseesessessessssseesessessecaeeassasnseatenses 29

TABLE OF AUTHORITIES

Cases

Associated Gas Distribs. v. FERC, 893 F.2d 349 (D.C. Cir. 1989)... cc ceccesseceteeretsesteeeasenseeeneens 27

Babbitt Ford, Inc. vy. Navajo Indian Tribe, 710 F.2d 587 (9th Cir. 1983) oe. cecceeseecseetseeseeeteeeees 17

Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007) ....ccececcccecceesceteceeeeceeaeseeeeaeeenecseeseeeeeseeeeseaeeseeaeens 8

Cabazon Band of Mission Indians v. Smith, 34 F. Supp. 2d 1195 (C.D. Cal. 1998)... eee 25

Cherokee Nation v. Nash, 267 F. Supp. 3d 86 (D.D.C. 2017) ....ceceeeseeseseeeseeeseeseeeseenesseenseeneeaes 15

Choctaw Nation of Indians v. United States, 318 U.S. 423 (1943) occcccecsccesscesecsteestesseeeesnsees 23

Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264 (l0th Cir. 2023) eee ceceeceeeeeeeeeeereeeeeeeeneees 8

County of Yakima v. Confederated Tribes and Bands of the Yakima Nation, 502 U.S. 251 (1992)

sevscesessceseossesecusesaessecesseesecssesseesessceseesesseseaeseseseesessesstsaecsessessaesecesensesaersecaessesesenesecesesseeaceesereneesetats 27

Eastman v. Union Pac. R.R. Co., 493 F.3d 1151 (Oth Cir, 2007)... ceccccscceeccsseceestseeseeenees 12

Edelman v. Jordan, 415 U.S. 651 (1974) .occecccccesccsesceseeececsaneceneeseceesseesseeceeceneesnaeesneesteeeeesnenenees 27

EEOC v. Fond du Lac Heavy Equip. & Constr. Co., 986 F.2d 246 (8th Cir. 1993) oe 15

Fed. Power Comm’n y. Tuscarora Indian Nation, 362 U.S. 99 (1960)....ccccccccsscesesceseseesesseeeeeees |

Graham v. Haaland, No. 6:23-cv-00168, Docket No. 84 (E.D. Oklahoma Jan 8, 2024)............. 25

Grayson v. Citizenship Bd. of the Muscogee (Creek) Nat., No. CF 2020-34 (Mar. 26, 2021)....... 7

Haaland v. Brackeen, 599 U.S. 255 (2023) .ccecccescccsscceseeeseeeseeeseeeneceneeesseesseeceeeeseenseeeseceeeeasenes 17

Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976) woo. eccccccesesscestecenseeseceseseneessaeeeessaees 21,25

Herrera v. Wyoming. 139 S. Ct. 1686 (2019) ee eecceneecseecsseeeeeceseeeseeeseeceaecesaeseeeeeaeeeaneeaeeeees 27

Hooper v. City of Tulsa, 71 F.4th 1270 (L0th Cir. 2023)... ccceeccecceecceeeceeeeeeesreeeeeeeeseeaeeeeeeaeeas 13

In re Effect of Cherokee Nation v. Nash, 16 Am. Tribal Law 268 (Cherokee 2021) 0.00... 6, 19

In re McDaniel, 973 F.3d 1083 (LOth Cir, 2020)... ce eecececeeececeeeeeeeeerecenecenaeeeeeessecsenseseeeeaeees 9

-li-

In the Matter of the Extended Term of Off. of Dist. Ct. Judge Patrick Moore, No. SC 10-05

(Muscogee (Creek) 2011) oe eeeesceseersecsseecsseeeseeeeseeessesseeenseersaeessaesensecseeeeaesesesesseesaasegeaenaes 29

Leavenworth, Lawrence, & Galveston R.R. Co. v. United States, 92 U.S. 733 (1875)... eee 15

Loughrin v. United States, 573 U.S. 351 (2014)... eee eeseeeneeeeeneecenesseeeseeneeneeeeesaeeseesesseees 9, 10

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)... ceccceececseessceesseeeeeeeeeesseeesseeeneetnesseeenaeeseaes passim

McIntosh Carr y. Zrtikas Zarger v. Brunner & Gooden, 7 Mvs. L. Rep. 348 (Muscogee

(Creek) 1886) ...cccececcecesseseeseesecesessesseesesseseceseesecsevaeenevsceeecssaeeeececeeaecsessaesessecsesseeaeeaesaesaeons 13, 24

Mclean v. United States, 226 U.S. 374 (1912). ececcesecseceseeeseeesneseeceaesenesieeeessseeseessesneesaeonaees 20

MCN Nat’! Council v. MCN Election Board, No. SC 09-10 (Muscogee (Creek) 2010)...

Lene EEE NEED ENCE EEE ED EDEL ELDER EEE EEE; E EEE E HEA; E ESE E EE; E SSG ede Et ease Dee e EEE EES eH EEE EEE 10, 28, 29

Milliken v. Bradley, 433 U.S. 267 (1977) ..ccceccecccesscessceeeeeceseessaeceseccenecesaeesseeenaesaesneseeaeenaneesatenes 28

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (2019) ee eeesteeeneees 14, 23

Muscogee (Creek) Nation v. City of Tulsa, No. 23-cv-00490-SH (N.D. Okla. Nov. 15, 2023)... 13

Muscogee (Creek) Nation v. American Tobacco Co., 2 Mvs. L. Rep. 37 (1998) ...cceeseeeeeeeeeeees 20

Roff v. Burney, 168 U.S. 21 (1897)... cecccceccececeneceneeeececseeceecsaneeseeceaecsaeeesaeseaeenseseseessaeenneseeeensees 17

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)... cccccccsccccsseecssseeessneeessneeesneecsereeseeeecseeeeseates 17

Scalia v. Red Lake Nation Fisheries, Inc., 982 F.3d 533 (8th Cir. 2020)... ccceeeseeceeeeeteeeneeteees 14

Seminole Nation Dev. Auth. v. Morris, 2000 WL 33976514, 7 Okla. Trib. 67 (Muscogee (Creek)

D. Ct. 2000)... ce eeceeseeeseeescecesceessceesseeeneeesaessaeceeeesaeesseessseseaeessesseeeieeseeesaeesseseeesanenseeeeas passim

Shrock y. Wyeth, Inc., 727 F.3d 1273 (L0th Cir. 2013) ccc ec eeceecceseeseeeseeneceeeeeceseseseeeseseseeatenas 8

Smith y. United Parcel Serv., 578 F. Appx 755 (Oth Cir. 2014). ce ceecceteeneetersesseeseeeeeeeaees 13

Strobel vy. Oklahoma Tax Comm’n, No. TC-120806 (Okla. Sup. Ct. Oct. 28, 2022) oe 13

Swinomish Indian Tribal Cmty. v. BNSF Ry. Co... 951 F.3d 1142 (th Cir. 2020)... eee 16

- lil -

Teledyne Indus., Ine. v. N.L.R.B., 911 F.2d 121 (6th Cir. 1990) ooo. eceecseeeeteeesseeeeeenseesseees 12

Tichenor v. Brewer’s Ex’r, 33 S.W. 86 (Ky. 1895) ..ccceccecccecceeseseceeseeeseeesecsceeeeeaeeececaeceaeeteeseeeeenes 22

United States v. Dion, 476 U.S. 734 (1986)....cccccccccssccscecsecessceseeesseessecessecsseseeseseeesaeeaes 14, 15, 16

United States v. Smith, 35 F.3d 344 (8th Cir. 1994) oe iccccessccscssecececseeeecseesereeeeceeseeeneesesseeees 9

United States y. State of Wash., 157 F.3d 630 (Oth Cir. 1998) oc ceeeecesecececeeeeceneceeeeeeseeseeeeees 18

United States v. Wheeler, 435 U.S. 313 (1978) ...ccccscccccessecescecesscessccesecessecesesseeeeteesessscseecsneeseeeaes 17

Vann v. Kempthorne, 534 F.3d 741 (D.C. Cir. 2008) ..ccccccccccccccsscsssecssseessesseceseseneeeessecssesseeesees 17

W. Virginia v. U.S. Envil. Prot. Agency, No. 3:23-CV-032, 2023 WL 2914389 (D.N.D.

Apr. 12, 2023) ...eceeeecccsscecceeeeeseesceeseeeccaecececeesneesecscecsecenecacessecseseaescecaeenseesecnessaesesseneeensenseenss 27

Washington St. Dep't of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000 (2019) wees 20

Statutes

MCNA 7, § 4-110 (B) nec ceceeccescccsscescceceseesseseseesaecsecenecesessecseessaesaeesseceeeseeeaseaeseseeaseaaes 8, 10, 28, 29

25 U.S.C. § 5203 eee cesceceeerceseeseesseesecesecnsecseceeneeseceeesseceseessesseeesscesecsaessecesesseccesseeeaesaeeareneserees 16

MCNA 7, § 2-1O8(B)(1), ...cceccessccscessecsceesececeeeeecseeesececesseceseeseseaseeseceseeeseaeesseaeesseseenserseesees 7, 8, 29

Other Authorities

Amicus Br. of Muscogee (Creek) Nation in Support of Pet'r, McGirt v. Oklahoma,

NO. 18-9526... ccc cece cence ee nen nn EERE EEE EEE ELE EE EEE EE EEE OEE EEE EEE EEE EEEE ES 11, 14,18

Angie Debo, The Road to Disappearance 253 (1941) vicccccsccssscessecsssceseecsncesseseaeecsseensceseseaeeeneees 4

Annie Heloise Abel, The American Indian Under Reconstruction 211 n.443 (1925)... 4,23

Braden Harper, MVSKOKE MEDIA, Governor Stitt continues to add stress to tribal government

relationships (Feb. 6, 2024), available at https://www.mvskokemedia.com/governor-stittcontinues-to-add-stress-to-tribal-government-relationShips/ ........ccccccccseceseeeseeesseessseeseeeseeseees 5

Brief of Appellant oc... ceccccscccssceseseesecssecesseccseceeeeceasceseccsecesaecssesssessnseesseseseesatecnsasesseseases passim

-iv-

Chris Cameron, NEW YORK TIMES, Lawmakers threaten to withhold major funds from Native

tribes over treatment of descendants of the enslaved (July 27, 2001), available at

https://www.nytimes.com/2021/07/27/us/freedmen-tribes-congress. html ........:ccccccecesesseseeseee 5

Department of the Interior —Office of Indian Affairs: Report of D.N. Cooley, as President of the

Southern Treaty Commission (October 30, 1865) .....cccceccccscessesesseesecsecsscsscsscssesscesessesseeeesees 4, 23

Gary Zellar, African Creeks — Estelvste and the Creek Nation (2007)....cccccccccscssesseeseseessens 3, 4, 24

Jean Chaudhuri & Joyotpaul Chaudhuri, A Sacred Path: The Way of the Muscogee Creeks

(2001) cece eecnceeecsecseesecssessceseeseesecsecaeeseesecssessssessecssessesssececaessessessessecsecseessesseescstssssscesesscessasens 30

Jonathan Small, OKLAHOMA COUNCIL OF PUBLIC AFFAIRS, McGirt Mess Continues to Grow

(May 23, 2022) available at https://ocpathink.org/post/analysis/mcgirt-mess-continues-to-

QIOW, vos ccccseccscscecesssseeeessecssuecseeceseeessssseecseessasesseessesssaeesseessaeceseesesecesecesaecesesenseenseeesesesseseesreseneenes 6

Kent Carter, The Dawes Commission and the Allotment of the Five Civilized Tribes, 1893-1914

53 (1999) oes csscnecnsesscssesseesecseesessecseceeesesseesecsseesessecaecsessecsecsessassasesscsecsscsecascnscsseaecsusseeesesss 5

Kristy Feldhousen-Giles, To Prove Who You Are: Freedmen Identities in Oklahoma 3 (2008) ... 3

Principal Chief David Hill, FACEBOOK (Aug. 30, 2023), available at

https://www.facebook.com/photo?fbid=86 1 0324257838 1 8&set=pcb.861036559116738...... 18

Message of Principal Chief Ward Coachman, (Oct. 1, 1877). .cccccccccsccscscssssscsscnsssecesceesscesees 24

OKLAHOMA GOVERNOR J. KEVIN STITT, Governor Stitt Delivers 2024 State of the State Address

(Feb. 5, 2024), available at https://oklahoma.gov/governor/newsroom/newsroom/2024/

february2024/governor-stitt-delivers-2024-state-of-the-state-address. html .......cccccecesecseereeees 5

Record on Appeal oo... cee ccesesecsssessessseresseeseeseeseeeeesscsecsecseseseeeessseesassseesecsessessecsessesseeenens passim

Robert N. Clinton, There Is No Federal Supremacy Clause for Indian Tribes, 34 Ariz. St. L.J.

113 (2002) eee ceecsecsecnecsecsecsersesseeecesecsessessessessecsecsessesaessacsecsassaeeeessesecsusescsscascseesscesceaeents 17

Secretary Haaland Approves New Constitution for Cherokee Nation, Guaranteeing Full

Citizenship Rights for Cherokee Freedmen, UNITED STATES DEPARTMENT OF INTERIOR

(May 12, 2021), available at http://tinyurl.com/2s3p9f54 0... cccccccecesscsscssessesssssssesssesseneenees 25

Statement of Bryan Newland Before the United States Senate Committee on Indian Affairs,

UNITED STATES DEPARTMENT OF INTERIOR (July 27, 2022), available at

https://tinyurl.com/DkMahver nsec eceeccesessessesesseseeseseesecsesscseesesscsessecscsscsesessessesussesssasesevseaeveees 25

WEBSTER’S UNABRIDGED DICTIONARY (1886 Edition) ..........c:ccccccecsccscesscssesseceecssseeserecersenscenees 21

Treaties

Treaty Between the United States and the Muscogee (Creek) Nation. June 14, 1866, 14 Stat. 785

SEES EEEE SSS SEESSESESSEEESSESESSSSOSESOSESSSSSSSSOSESOSSSSOSSSSSESTSCSSOSSOSSECOSSSSTSSSSSSSSSSSS OSES tS SSS SSS SSS SSSSOS passim

Constitutional Provisions

MECN Const. art. VID, $1 occ cceeccesccessssesseesssessceseccstcsssessessecsessseesessessccsssesecsesseaseceevaseseeares 6, 12

-vi-

INTRODUCTION

“Unlawful acts, performed long enough and with sufficient vigor, are never enough to

amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices

over the law, both rewarding wrong and failing those in the right.” AfcGirt v. Oklahoma, 140 S.

Ct. 2452, 2482 (2020). In the historic McGirt decision, the United States Supreme Court ended

Oklahoma’s violation of the 1866 Treaty between the United States and the Muscogee (Creek)

Nation (the “Nation”), fortifying the Treaty’s status as the supreme law of the land. Accordingly,

the Supreme Court upheld the United States’ commitments to the Nation in Articles 1, 3, and 9 of

the Treaty of 1866 (the “Treaty”) and restored the Nation’s rightful jurisdiction.

In Article 2 of that same Treaty, the Nation solemnly committed to give Creeks of African

descent and their descendants (the “Freedmen”)! citizenship, “the rights and privileges of native

citizens”, and “equal protection” under the Nation’s laws. Treaty Between the United States and

the Muscogee (Creek) Nation, June 14, 1866, 14 Stat. 785, art. 2. Put simply. the Nation gave its

word, and “[g]reat nations, like great men, should keep their word.” Fed. Power Comm’n v.

Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting). This Court now has the

opportunity to show the world that the Nation will keep its word as a nation of laws by enforcing

Article 2 of the Treaty and restoring the citizenship of Rhonda Grayson and Jefferey Kennedy

(collectively, the “Respondents”), who were born citizens of the Nation before being illegally

denaturalized in 1979.

In a stunning twist, Appellant Citizenship Board (the “Board”) attempts to defend the

indefensible by undermining the Nation’s own sovereignty: it claims its denial of Respondents’

‘In 1906, thousands of individuals who were or are descendants of (1) individuals who were enslaved by the Nation,

(2) Creeks of “African Descent,” (3) free “Africans” living as citizens of the Creek Nation, and/or (4) “mixed blood”

citizens of the Nation were deemed by the Nation to be Creek Freedmen.

citizenship is rooted in a tacit abrogation of the Treaty by a statement from a functionary of the

United States Government.” The Board posits that Congress can (and has) delegated to federal

bureaucrats the ability to implicitly abrogate operative provisions of the Treaty, which the Board

concedes is the supreme law of the Nation and the United States. If the Court remands on that

logic, in future cases, the Nation will be estopped from demanding other parties must show

Congress unequivocally intended to abrogate other treaty rights. It will open the Nation to

renewed, more vigorous, challenges to the Treaty as a whole—thereby undermining AfcGirt, for

which the Nation fought so hard.

Notably, most, if not all, of the Board’s objections do not stem from the actions of the

District Court, which the Board shamelessly disparages as engaging in “judicial activism.” App.

Br. at 15.° Rather, its objections stem from evidentiary issues caused by its own willful obstruction

by refusing to provide evidence in a timely manner—behavior which was so egregious that the

District Court sanctioned its trial counsel F.g., R. 102 (District Court’s Order granting

Respondents’ motion for sanctions). This Court should disregard the Board’s paltry sovereign

immunity claim, avoid a precedent-setting erosion of the Nation’s rights under the Treaty, follow

settled treaty interpretation and jurisprudence. and affirm the District Court’s judgment that

Respondents’ petition to acquire citizenship in the Nation in 2019 was wrongfully denied.

STATEMENT OF THE ISSUES

(1) Can anything less than an unequivocal Act of Congress abrogate the Treaty Rights of

the Nation or its citizens?

* In lieu of even acknowledging the Nation’s sovereign commitment to extend full rights to the Freedmen, the Board

presents several red herrings in the form of purported evidentiary concerns and a statutorily-waived sovereign

immunity defense. Notwithstanding the lack of support for the Board’s evidentiary concerns, this Court could still

apply de novo review, disregard all evidence at trial, and affirm the judgment below. See infra n.8 (discussing the

administrative record in this case).

* Throughout this Brief. citations to “App. Br.” indicate reference to Brief of Appellant. And citations to “R.”

indicate reference to the Record on Appeal.

SUMMARY OF THE HISTORICAL RECORD*

Creeks of African descent have a long and storied history within the Nation. R. 9 at 2 (citing

Kristy Feldhousen-Giles, Jo Prove Who You Are: Freedmen Identities in Oklahoma 3 (2008)).

These Creeks were brought into the Nation “as free people who intermarried or were adopted into

tribal communities, as runaway [en]slave[d] from the American colonies and states, and as

enslaved people who were bound to particular individuals ....” Jd. There were citizens of African

descent within the Nation well before the Treaty of 1866, id. at 3 (citing Gary Zellar, African

Creeks — Estelvste and the Creek Nation 32-37 (2007)).° African Creeks’ status deteriorated when

many Creeks adopted the plantation economies and anti-Black attitudes of the southern slavestates. See R. 9 at 4 (citing Zellar at 43). The Civil War divided the Nation, with certain Creek

leaders signing a treaty with the Confederacy. /d. A separate faction joined the Union army in

Kansas with many African Creeks. both enslaved and free. R. 9 at 18 (citing R. 10, Ex. D, Dr.

Gary Zellar Aff.).

In 1865, as the Civil War ended, President Andrew Johnson designated a peace commission

to travel to Fort Smith, Arkansas, to convene a council for the purpose of negotiating new treaties

with the Nation, the other Five Tribes, and various Plains Tribes. R. 9 at 5 (citing Zellar at 78).

The members of that commission declared that a treaty with the United States must contain certain

stipulations to bring the 13th, 14th, and 15th Amendments into effect, including:

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 All of the history in this section was brought forth at the summary judgement stage, at trial, or both, and none of it

was ever contested or contradicted by the Board.

> For example, the descendants of Cow Micco, a free Creek of African descent and Chief within the Creek Nation who

along with other tribal leaders negotiated and signed the Treaty of 1866. are ineligible for citizenship within the MCN

due to the racially discriminatory and unlawful blood quantum requirements. See R. 31 at 14.

-3-

R. 9 at 6 (quoting Department of the Interior-Office of Indian Affairs: Report of D.N. Cooley, as

President of the Southern Treaty Commission 298 (October 30, 1865)); see also R. 91, Tr. 34:1-

37:2 (expert testifying her scholarship shows the United States’ intent in negotiating Article 2 of

the Treaty was to extend the Reconstruction Amendments to the Nation). While many Creeks

acquiesced, the Creeks aligned with the Confederacy (“Confederate Creeks’) initially refused on

the basis that the Freedmen should not benefit from “principles of equality as citizens” of the

Nation. /d. at 17 (quoting Annie Heloise Abel, The American Indian Under Reconstruction 211

n.443 (1925)).

Despite initial opposition, and in a clear exercise of its sovereignty, the Nation negotiated

and executed the 1866 Treaty with the United States. The Treaty provides in pertinent part:

[T]he many persons of African descent . . . residing in said Creek country under

their laws and usages, or who have been thus residing in said country . . . 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.

Treaty, art. 2 (emphasis added). From the 1867 Constitution until the passage of the present

Constitution in 1979, Freedmen were accordingly integrated into the Nation.° In fact, the Arkansas

Colored, Canadian Colored. and North Fork Colored towns all elected representatives to the House

of Kings and the House of Warriors. R. 9 at 18 (citing Zellar at 97).

Intent on destroying the Nation, however, in 1893, Congress created the Commission to

the Five Civilized Tribes (the “Dawes Commission’) to negotiate an allotment agreement to “break

® By 1878, African Creek participation in the Nation’s political affairs included not only representation on the National

Council but also Tribal court judicial appointments as judges and attorneys, popular elected positions as Lighthorse

law enforcement officers, and awardees of government service contracts. See R. 9 at 7 (citing Zellar at 99; Angie

Debo, The Road to Disappearance 253 (1941)).

down the autonomy of the Five Tribes and erect a white man’s state... .” R. 9 at 8 (quoting Kent

Carter, The Dawes Commission and the Allotment of the Five Civilized Tribes, 1893-1914 53

(1999)). During this assault on the Nation’s sovereignty, Congress passed the Curtis Act of June

28, 1898, 30 Stat. 495, id. (citing Carter at 36), which directed the Dawes Commission to forcibly

complete citizenship rolls of the Creek Nation with the goal of disassembling the Nation’s

sovereign territory. The citizenship rolls created by the United States were: 1) the “Blood Roll,”

which allegedly comprised Creek citizens with Creek blood; and 2) the “Freedmen Roll,” which

was purportedly a roll of those citizens of the Nation who were formerly enslaved Africans.

In addition to determining Tribal citizenship, the Dawes Commission also artificially

imposed an allottee’s degree of Indian blood (“blood quantum”). Where an allottee had parents

from different tribes, their blood quantum was calculated for their mother’s side only. /d. at 9

(citing Carter at 49). The Dawes Commission employed the racist hypo-descent rule, by which

any individual with “one drop” of “Black blood” was to be considered Black. Therefore, in cases

of mixed African Creek and Indian “by blood” parents, the allottee was always enrolled on the

Freedmen Roll. /bid. The Dawes Commission enrolled Creeks of African descent on the Freedmen

Roll, regardless of whether they or their ancestors were ever formerly enslaved or how much

“Creek blood” they actually possessed. /bid. The Nation is now using these vestiges of federal

attempts to destroy the Nation to shirk its sovereign commitments to the Freedmen, thereby

handing its many opponents in the United States and Oklahoma, as well as powerful private

entities, new weapons with which to assault the Nation (see infra at 12-13).’

? See, e.g., Chris Cameron, NEW YORK TIMES, Lawmakers threaten to withhold major funds from Native tribes over

freatment of descendants of the enslaved (July 27, 2001), available al

https:/Avww.nytimes.com/2021/07/27/us/freedmen-tribes-congress.html: Braden Harper, MVSKOKE MEDIA,

Governor Stitt continues to add stress to tribal government relationships (Feb. 6, 2024), available at

https:/Avww.mvskokemedia.com/governor-stitt-continues-to-add-stress-to-tribal-government-relationships’:

OKLAHOMA GOVERNOR J. KEVIN STITT, Governor Stitt Delivers 2024 State of the State Address (Feb. 5, 2024),

available at https://oklahoma.gov/governor/newsroom ‘newsroom /2024/february2024/governor-stitt-delivers-2024-

-5-

On October 6, 1979, the present Constitution was ratified. Muscogee (Creek) Const.,

Certificate of Results of Election. The Constitution states, in pertinent part:

Persons eligible for citizenship in the . . . 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 as provided [by the same

act]....

MCN Const. art. ITI, § 2 (emphases added). Upon ratification of this Constitution and to the present

day, the Nation unlawfully robbed Creek Freedmen of their citizenship. It is this Constitutional

language, and the laws implementing it, that are, as the Cherokee Supreme Court held when

dealing with a similar treaty provision entitling their Freedmen to citizenship, void ab initio. See

In re Effect of Cherokee Nation v. Nash, 16 Am. Tribal Law 268, 274 (Cherokee 2021). This

litigation does not address any other provisions of the Nation’s Constitution.

STATEMENT OF THE CASE

Respondents possess a present right to citizenship pursuant to Article 2 of the Treaty of

1866 as descendants of those enrolled by the Dawes Commission as Muscogee (Creek) Freedmen.

The Treaty is binding on the Nation. Article III of the Creek Constitution and the Nation’s current

citizenship laws, as applied to descendants of the Dawes Freedmen Roll, violate Article 2 of the

Treaty. The Citizenship Board’s most recent denial of Respondents’ right to citizenship deprives

Respondents of their guaranteed rights under the Treaty. The District Court was accordingly

correct to reverse the Board’s decision and recognize those portions of Article II] of the Creek

Constitution which deny Freedmen citizenship as invalid. See also In re Effect of Cherokee Nation

v. Nash, 16 Am. Tribal Law at 247; Seminole Nation of Oklahoma v. Norton, 2001 WL 36228153.

state-of-the-state-address.htm! (lashing out against AfcGirt and lawsuits such as Strobel and Hooper supported by

“tribal governments” as “standing in the way” of resolution of various legal issues); Jonathan Small. OKLAHOMA

COUNCIL OF PUBLIC AFFAIRS, AfcGirt Mess Continues to Grow (May 23, 2022), available at

https://ocpathink.org/post/analysis/mcgirt-mess-continues-to-grow.

-6-

at *17 (D.D.C. Sep. 27, 2001) (finding the Curtis Act, which Respondents note is more expansive

and comprehensive than Oklahoma Indian Welfare Act, or “OIWA”, did not abrogate the Seminole

Nation’s obligations to their Freedmen pursuant to their 1866 Treaty with the United States).

A. Proceedings Before the Citizenship Board

Respondents both applied for citizenship in 2019. See R. 75, 80.8 Their applications

invoked Article 2 of the Treaty and provided evidence that they are lineal descendants of an

ancestor on the 1906 Dawes Freedmen rolls. The Board has not disputed Respondents’ ancestral

lineage and status as descendants of Creek Freedmen. See, e.g., R. 75 at 41 (acknowledging

Kennedy’s ancestral lineage to be “true and correct”). Despite this undisputed lineage, both

Respondents were given a boilerplate denial of citizenship because “no Original Enrollee, on the

1906 Dawes Creek By Blood Roll, was found for your Citizenship Application . . . the Citizenship

Board’s decision is to deny your Citizenship application for enrollment.” R. 75 at 39; R. 80 at 18

(emphasis added). Both then appealed the denial through a hearing before the full Board in which

they presented as evidence the Treaty and re-asserted their right to citizenship in the Nation.

5 R. 75 and R. 80 are the administrative record: Respondents only obtained the administrative record after discovery

requests. See R. 89, Tr. 55:1-56:10 (Nathan Wilson testifying that these exhibits are the administrative record and

were provided only after discovery requests).

Despite its statutory obligation to maintain an administrative record, MCNA 7, § 2-108(B)(1), the Board initially

denied creating one. Thus, it strains credulity that the Board currently appeals the District Court’s ruling in part

because the District Court strayed from the administrative record. In fact, in its brief opposing Respondents’ request

that this Court take original jurisdiction, the Board argued that the attempted appeal was “a disingenuous attempt to

circumvent ... the exercise of discovery” and insisted that it “must be afforded the opportunity to engage in the

exercise of discovery, including responses to requests for production of documents, sworn interrogatory responses,

answers to requests for admissions and the opportunity to depose Appellants. their witnesses and experts.” Mot. to

Dismiss Appeal. Grayson v. Citizenship Bd. of the Muscogee (Creek) Nat., No. CF 2020-34 (Mar. 26, 2021) at 6

(emphasis added). Additionally, this Court declined to assert original jurisdiction, in part because it “would greatly

benefit from the assembling of a complete record before the District Court.” /d., Order Denying Pet*r’s Notice of

Appeal. Grayson v. Citizenship Bd. of the Muscogee (Creek) Nat., No. CF 2020-34 (Mar. 29, 2021) at 4. Accordingly.

and because the Board was successful in demanding original jurisdiction not be taken because a factual record—which

necessarily sits outside of the administrative record—be compiled, it should be estopped from attacking the opinion

below for doing just as the Board insisted: compiling and then relying upon evidence outside the administrative record.

Despite this, the Citizenship Board affirmed the denial in letters containing nearly identical

language to Respondents’ initial denials. See R. 75 at 50; R. 80 at 15.

B. Respondents’ Petition in the District Court

The administrative record is crystal clear: Respondents were denied citizenship in violation

Article 2 of the 1866 Treaty. Having exhausted their administrative remedies, Respondents

petitioned the District Court, as is their right “pursuant to [MCNA] Title 7 § 4-110 (B).” R. 14 18.

The petition sought relief under “the Treaty of 1866 between the United States and the Creek

Nation... .” R. 1 § 19; see also R. 1 78. Respondents maintained throughout the proceedings

below that their citizenship rights were supported by the administrative record. See id. at 40:16-24.

However, in the proceedings below, and contrary to their MCNA-mandated obligation to maintain

an administrative record (MCNA 7, § 2-108(B)(1)), the Citizenship Board claimed it “[did not]

have arecord....” R. 31, 9:11-12; id. at 34:25-35:4; see also supra n.8.

C. The Trial

The Board’s own obfuscation of the record forced a trial on one issue: the rationale for

denying Respondents’ citizenship application.!° See also supra n.8 (discussing Respondents

circuitous acquisition of the administrative record). In that trial, Respondents presented evidence

from a legal expert meticulously outlining the Supreme Court test necessary to decide if a Treaty

° The Board’s invitation to this Court to reverse the District Court on precisely the grounds requested in the Petition’s

headers should be declined. Courts do not limit themselves to the headers in a complaint to determine if a claim is

present, but rather read holistically to determine whether a defendant has been given “fair notice of what the ... claim

is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (interna! citations

omitted); see also Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1275 (10th Cir. 2023) (‘Our task is to consider

the complaint’s allegations taken as a whole”) (emphasis added) (quotation marks and citation omitted). Moreover.

the Board did not assert this as a ground for dismissal either in their motion to dismiss or at trial. Accordingly, this

last-ditch effort to avoid the Nation’s obligation to the Freedmen is waived. Compare App. Br. at 2-3, with Shrock vy.

Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir. 2013) (Arguments that were not raised below are waived”).

1° The District Court made clear why it denied summary judgement: “Inasmuch as this case is rooted in the Citizenship

Board's rationale for the denial of Plaintiffs’ applications for enrollment, and the rationale applied by the Citizenship

Board is not a fact agreed upon by the parties, this Court need go no further in discussing whether summary judgment

is appropriate.” R. 42 at 7.

between the United States and an Indian Nation remains in force. Certainly, during the trial, the

District Court heard testimony from the Board’s employees as to their rationale in denying

Respondents’ citizenship application. But that rationale is irrelevant as a matter of law, because all

that matters is (as is conclusively shown below) the Nation made a sovereign commitment and

agreed that the “supreme law of the land” required extending citizenship and all rights to Creek

Freedmen and their descendants (Treaty, art. 2), supra (citing R. 75 at 41). The fact that the Board

still denied citizenship “based on applicable law....”, R. 75 at 39; R. 80 at 18, means the

“applicable law” in question is contrary to the Treaty and the Nation’s laws—a question of law.

D. The District Court’s Opinion

The District Court held that the Board’s decision was both contrary to the law and did not

address the substantial evidence (including addressing the Treaty, which was appended to

Respondents’ applications).

The District Court did not reach “contradictory conclusions,” as the Board argues. App.

Br. at 9 (representing the District Court somehow condoned the Citizenship Board’s decisions

because it found they “were not arbitrary and capricious”). This is a complete misreading of the

District Court’s opinion—the opinion defined “arbitrary and capricious” as “a willful and

unreasonable action taken without consideration or in disregard of acts or law or without a

determining principle.” R. 111 at 7 (emphases added). As this Court, and any regular user of the

English language, is aware, “or” is disjunctive, indicating an alternative.” United States v. Smith,

35 F.3d 344, 346 (8th Cir. 1994); see also In re McDaniel, 973 F.3d 1083, 1095 (10th Cir. 2020)

(finding that “or” is “disjunctive” (citing Loughrin vy. United States, 573 U.S. 351. 357 (2014))).

While the District Court found that the Citizenship Board's actions were not arbitrary and

capricious, because they received “flawed” guidance from the Nation’s Attorney General. R. 111

_9-

at 10, the Opinion nonetheless found that the decision was contrary to law. /d. at 12-14. This

comports with the standard of review in the statute, which requires agency action be set aside if it

is “arbitrary and capricious, unsupported by substantial evidence or contrary to the law.” /d. at 7

(emphasis added) (quoting MCNA 7, § 4-110(B)); see also Loughrin, 573 U.S. at 357.!!

STANDARD OF REVIEW

The Citizenship Board is correct that the standard of review for the purely legal and

Constitutional question of whether Article 2 of the Treaty has been abrogated by Congress,

discussed more thoroughly infra at 27-29, is de novo (App. Br. at 26). But this Court’s review of

questions of Constitutional law should never be “deferential.” /d. “As this Court reviews all lower

court rulings on issues of law de novo, all dispositive constitutional law issues are ultimately

decided by this Court.” AYCN Nat'l Council v. MCN Election Board, No. SC 09-10, at 11

(Muscogee (Creek) 2010), corrected on other grounds on Dec. 6, 2010: see also infra at 28-29

(discussing MCN Nat'l Council). For this reason, and because this dispute is purely legal, this issue

does not implicate the factual record developed at trial—only the administrative record and the

laws of this Nation.

ARGUMENT

The Board incorrectly complains that the District Court did not afford it the appropriate

level of deference, App. Br. at 9, 12, 14, 26, 27, and instead engaged in “judicial activism,” id. at

15. Yet the Board is not due a heightened level of deference when it misapplies the law. And it did

indeed misapply the law by violating Article 2 of the Treaty. It is not a sign of judicial activism,

'"! Not content to merely misread the lower court proceedings, the Board goes as far as to malign them. In describing

the District Court opinion, the Board characterizes it as “judicial activism ....~” App. Br. at 15. Worse still, the Board

attacks the testimony of University of Oklahoma College of Law’s Ada Lois Sipuel Fisher Chair in Civil Rights, Race

and Justice Professor Carla Pratt before the District Court on the basis that she is “an adopted child of Choctaw

Freedmen ... .” /d. at 7. There is no reason to denigrate the birth of a witness, particularly where this Court only

overturns factual determinations of a District Court for clear error. The Board appears desperate enough to avoid this

Court’s review of the merits of the law to resort to ad hominem attacks on witnesses and the Nation’s judiciary.

-10-

but judicial resolve, to uphold the laws that protect the Nation from federal and state encroachment.

Conversely, the Nation is not entitled to sovereign immunity because it was expressly waived.

I. The Citizenship Board’s Denial of Citizenship to Respondents was Arbitrary and

Capricious, Without Substantial Evidence, and Contrary to the Law.

It is axiomatic that the Treaty of 1866, including Article 2, is in full force and is binding.

The Board is bound to conform to the Treaty because “treaties entered into with the United States

of America and Indian Nations should be held inviolate and followed by . . . the United States of

America and the Muscogee (Creek) Nation.” Seminole Nation Dev. Auth. v. Morris, 2000 WL

33976514, at *8, 7 Okla. Trib. 67 (Muscogee (Creek) D. Ct. 2000). In 2020, the Nation won a

landmark victory in which it advocated for the supremacy of the Treaty before the United States

Supreme Court. See AfcGir1, 140 S. Ct. at 2460-51; see generally Amicus Br. of the Muscogee

(Creek) Nation in Support of Pet’r, MceGirt v. Oklahoma, No. 18-9526 (AfcGirt Amicus Brief”).

McGirt adheres to the principle, uniformly followed by courts, that all sovereign entities are bound

by treaties as they are the “supreme law of the land.” See also Seminole Nation Dev. Auth. v.

Morris, 2000 WL 33976514, at *8. Article 2 of the Treaty expressly guarantees citizenship in the

Nation to descendants of those on the Freedmen Rolls, including Respondents. Accordingly, any

decision that denies Respondents citizenship in the Nation because they do not descend from

ancestors on the so-called Creek by Blood Roll is contrary to the law, as doing so denies them the

citizenship to which they are entitled, “the rights and privileges of native citizens,” and “equal

protection” under the Nation’s laws. Treaty, art. 2.

The Citizenship Board does not, and cannot, argue that the Treaty is not part of the Nation’s

law. Indeed, “[t]he judicial power of the . . . Nation shall be vested in [this] Court limited to the

... Nation’s jurisdiction... .”, MCN Const. art. VII. § 1, which is defined as “based upon those

Treaties entered into by the... Nation and the United States of America...” M(C)N Const. art.

sjj=

1, § 2 (emphasis added). Moreover, the Nation’s courts “shall have general civil jurisdiction over

all civil actions arising under the Constitution, laws, or treaties of the... Nation... regardless of

the Indian or non-Indian status of the parties.” MCNA 27, § 1-102(B) (emphasis added). And “[i]n

all cases, the ... Nation’s Courts shall apply the Constitution and duly enacted laws of the...

Nation, the common law of the Muscogee people as established by customs and usage, and the

Treaties and Agreements between the . .. Nation and the United States.” Jd. § 1-103(A).

Moreover, if this Court adopts the Board’s argument that Article 2 can be abrogated by

anything less than unequivocal statutory language by the United States Congress, then the Nation

will be barred by the doctrine of judicial estoppel from ever requiring its many adversaries to meet

the high burden of establishing Congressional clarity when abrogating treaty rights in the future.

Judicial estoppel “forbids a party “from taking a position inconsistent with one successfully and

unequivocally asserted by the same party ina prior proceeding.’” Teledyne Indus., Inc. v. N.L.R.B.,

911 F.2d 1214, 1217 (6th Cir. 1990); Eastman v. Union Pac. R.R. Co., 493 F.3d 1151, 1156 (10th

Cir. 2007) (The “three factors” of estoppel in the Tenth Circuit—the venue where the Nation faces

the most immediate risk of challenge, are that: (1) the party’s position is “clearly inconsistent”

with a past position, (2) the party “succeeded” “so that judicial acceptance of [the] inconsistent

position ... would create the perception that either the first or the second court was misled[;]” and

(3) the party “would gain an unfair advantage in the litigation”).

This “equitable doctrine” applies in this circumstance as it “preserves the integrity of the

courts by preventing a party from abusing the judicial process through cynical gamesmanship,

achieving success on one position, then arguing the opposite to suit an exigency of the moment,”

Teledyne Indus., Inc., 911 F.2d at 1218: an apt description of fighting for recognition of the Treaty

in one breath in MJcGirt, and self-abrogating portions of the Treaty contrary to those same

arguments in another. See Smith v. United Parcel Serv., 578 F. App’x 755, 759 (10th Cir. 2014)

(“The purpose of judicial estoppel ‘is to protect the integrity of the judicial process by prohibiting

parties from deliberately changing positions.””); see also Hooper v. City of Tulsa, 71 F.4th 1270,

1285 (10th Cir. 2023) (the Nation supporting Hooper as amicus and relying on McGirt, which of

course relied on the enforceability of the Treaty); Strobel v. Oklahoma Tax Comm/’n, No. TC-

120806 (Okla. Sup. Ct. Oct. 28, 2022) (same); Muscogee (Creek) Nation v. City of Tulsa, No. 23-

cv-00490-SH (N.D. Okla. Nov. 15, 2023) (the Nation relying on A/cGirt as a party to the action).

In fact, the Court may find that the Board’s argument is presently estopped, as it directly

contradicts the Nation’s successful intervention in A/cGirt and Hooper. If successful here, the

Nation will certainly be faced with relitigating AfcGirt in the future without the successful defenses

it initially raised.

Rather than test the unequivocal language, applicability, or supremacy of the Treaty, the

Board resorts to a myopic legal theory that risks the very foundations of tribal sovereignty both for

the Nation and all other Tribal Nations throughout the country. Specifically, the Board argues

Article 2 was implicitly abrogated upon the Department of the Interior’s (the “DOI”) acceptance

of the Nation’s present constitution through OIWA. App. Br. at 19-22. In support of this theory.

the Board erroneously points to boilerplate language in the Treaty recognizing that Congress may

alter the terms of the treaty. It is black letter law that Congress cannot abrogate treaty rights without

an unequivocal statement to that effect. OIWA does not expressly abrogate Article 2; in fact, it

does not even mention the Treaty.

The Board also ignores binding precedent from this Court interpreting Article 2 of the

Treaty. which recognizes Creek Freedmen as citizens, see \/cIntosh Carr y. Zrtikas Zarger v.

Brunner & Gooden, 7 Mvs. L. Rep. 348 (Muscogee (Creek) 1886), and instead—unbelievably—

relies on a non-binding (and unpersuasive) 1941 opinion from the Solicitor General of the DOI as

authority that the Treaty has been implicitly abrogated.

Accepting the Citizenship Board’s arguments would create a catastrophic inroad on the

Nation’s sovereignty by exponentially expanding any adverse party’s ability to violate the Nation’s

sovereign interests. Regardless, the DOI’s ratification of the Nation’s Constitution explicitly

carves out ratifying any violations of federal law—which denying the Freedmen citizenship in the

Nation surely constitutes. As the Treaty remains wholly in force, the Nation violated and continues

to violate the Treaty, and therefore the law, when it denies Freedmen citizenship despite its

commitment in the Treaty.

A. Article 2 of the Treaty of 1866 Remains in Force.

“Indian treaty rights are too fundamental to be easily cast aside.” United States vy. Dion,

476 U.S. 734, 739 (1986). Yet it is “clear that Congress has ... broken more than a few of its

promises to the Tribe.” AfcGirt, 140 S. Ct. at 2462. Certainly, it remains the unfortunate reality

that Congress can unilaterally abrogate treaty provisions or treaty rights. See Dion, 476 U.S. at

739. Due to the fundamental nature of Indian rights, however, such abrogation must be

unequivocal. /d. at 738 (“We have required that Congress’ intention to abrogate Indian treaty rights

be clear and plain.”); see also Scalia v. Red Lake Nation Fisheries, Inc., 982 F.3d 533, 535 (8th

Cir. 2020) (relying upon Dion’s clear statement rule to hold that the OSHA does not apply to a

fishery organized under Indian law). The Nation itself has argued that acts. such as the Oklahoma

Statehood Act, cannot abrogate treaty rights unless they “otherwise demonstrate[] Congress’ clear

intent to abrogate a treaty...” AfcGirt Amicus Br. at 25 (citing Afinnesota v. Mille Lacs Band of

Chippewa Indians, 526 U.S. 172, 207 (2019)).

Tex

While an “[e]xplicit statement by Congress is preferable for the purpose of ensuring

legislative accountability for the abrogation of treaty rights,” Dion, 476 U.S. at 739, at a minimum,

there must be “clear evidence that Congress actually considered the conflict between its intended

action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by

abrogating the treaty,” id. at 739-40; see also Leavenworth, Lawrence, & Galveston R.R. Co. v.

United States, 92 U.S. 733, 741-42 (1875); EEOC. v. Fond du Lac Heavy Equip. & Constr. Co.,

986 F.2d 246, 250-51 (8th Cir. 1993).

Tellingly, the Board’s brief mentions none of this.!* Further, the statutory language from

OIWA that the Board contends abrogates Article 2 does not contain an unequivocal or plain

statement abrogating the Treaty. Nor does it, or does its legislative history, contain even a scintilla

of evidence, let alone “any clear evidence that Congress actually considered the conflict between

its intended action on the one hand [stripping citizenship from Freedmen, as the Board claims] and

Indian treaty rights on the other [here, a guarantee of citizenship to Freedmen and their

descendants], and chose to resolve that conflict by abrogating the treaty.” Dion, 476 U.S. at 740:

see also see Cherokee Nation v. Nash, 267 F. Supp. 3d 86, 132 (D.D.C. 2017) (finding no evidence

in the legislative history of the Five Tribes Act that Congress intended to abrogate Freedmen

citizenship requirements in the 1866 Treaty between the U.S. and the Cherokee), judgment entered

sub nom. In re Effect of Cherokee Nation v. Nash, 16 Am. Tribal Law 268.

The relevant portion of OIWA states:

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

2 Tn fact, in a shocking turn of phrase that flips the last remaining protections it has against federal encroachment on

the Nation’s sovereignty on its head, the Board states that “[t]he 1866 Treaty does not invalidate the membership

requirements contained in the Nation’s Constitution and approved by the United States.” App. Br. at 24. The actual

question that must be answered, but that the Board has avoided throughout these proceedings. is whether the Nation’s

Constitution could ever “invalidate” (i.e., abrogate) a treaty (it cannot) and if any supposed United States approval

meets the level of specificity the Supreme Court requires.

-

-15-

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 ....

25 U.S.C. § 5203. There are no indicators in this section or any statutory text in OIWA (or its

legislative history) that Congress even considered a conflict between that Act and Article 2, or any

aspect of the Treaty. See Dion, 476 U.S. at 740. In fact, OIWA “and its legislative history do not

mention Indian treaties or treaty rights at all, let alone the Treaty of [1866]. Swinomish Indian

Tribal Cmty. v. BNSF Ry. Co., 951 F.3d 1142, 1160 (9th Cir. 2020). Nor does OIWA have, on its

face, any evidence of Congressional intent to abrogate Article 2 (or any other aspect of any treaty).

This is in marked contrast to Dion, as an example, in which “Congressional intent to abrogate

Indian treaty rights to hunt bald and golden eagles [was] certainly strongly suggested on the face

of the Eagle Protection Act” because “[t]he provision allowing taking of eagles under permit for

the religious purposes of Indian tribes [was] difficult to explain except as a reflection of an

understanding that the statute otherwise bans the taking of eagles by Indians.” 476 U.S. at 740.

There is no similar tension between OI WA and Freedmen citizenship guaranteed in Article 2.

Even if there was some indication in OIWA suggesting Congress intended to greenlight

the disenfranchisement of Freedmen (there is not), the DOI’s acceptance of the present constitution

does not suffice to abrogate the Freedmen’s rights. The DOI’s ratification of the constitution

explicitly cabins its approval to actions that do not violate federal law. M(C)N Const., Approval

(DOI approving of the 1979 Constitution “provided that nothing in this approval shall be construed

as authorizing any action under the Constitution that would be contrary to federal law.”). Depriving

Freedmen of citizenship violates Article 2 of the Treaty. which constitutes the supreme law of the

land unless abrogated. As such, the ratification of the M(C)N constitution did not—and could not

have—ratified stripping the Freedmen of citizenship within the Nation.

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Without abrogation of the Treaty, the Nation has no sovereign right to deprive Freemen of

citizenship. This is not because the Nation does not have a sensitive sovereign interest in choosing

its membership. It does. See App. Br. at 23 (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49,

72, n.32 (1978) and Roff v. Burney, 168 U.S. 218, 222 (1897)). Rather, it is because the Nation

exercised a different sovereign prerogative in joining the Treaty—the ability, as a sovereign, to

make treaties with another sovereign. It is well established that the one constraining factor upon

the Nation’s ability to self-select membership is federal law (here, a treaty)—-something Roff v.

Burney, to which the Board itself cites, makes eminently clear:

The citizenship which the Chickasaw legislature could confer it could withdraw.

The only restriction on the power of the Chickasaw Nation to legislate in respect to

its internal affairs is that such legislation shall not conflict with the constitution or

laws of the United States, and we know of no provision of such constitution or laws

which would be set at naught by the action of a political community like this in

withdrawing privileges of membership in the community once conferred.

168 U.S. at 222 (emphasis added).'? Even the most deferential constructions of tribal authority,

which posit the federal supremacy clause should not apply to First Nations, still maintain that

treaties are a sovereign act and must be adhered to. See, e.g., Robert N. Clinton,'4 There Is No

13. See also Vann v. Kempthorne, 534 F.3d 741, 755-56 (D.C. Cir. 2008) (noting the “Cherokee Nation has no interest

in protecting a sovereignty concern that has been taken away by the United States,” that “the Thirteenth Amendment

and the 1866 Treaty . . . left it powerless to discriminate against the Freedmen on the basis of their status as former

slaves, and that “‘[t]he tribe lacks amy sovereign interest in such behavior.” (citation omitted)); United States v.

Wheeler, 435 U.S. 313, 323 (1978) (“Indian tribes still possess those aspects of sovereignty not withdrawn by treaty

or statute... .”); Seminole Nation Dev. Auth., 2000 WL 33976514 at *8 (concluding “treaties entered into with the

United States of America and Indian Nations should be held inviolate and followed by not only the United States of

America and the Muscogee (Creek) Nation, but other Indian Nations .. . .”): Haaland v. Brackeen, 599 U.S. 255, 318

(2023) (Gorsuch, J., concurring) (*[T]he only restriction on the power’ of Tribes ‘in respect to [their] internal affairs’

arises when their actions ‘conflict with the Constitution or laws of the United States.’”); Babbitt Ford, Inc. v. Navajo

Indian Tribe, 710 F.2d 587, 591 (9th Cir. 1983) (“Indian tribes have long been recognized as sovereign entities,

“possessing attributes of sovereignty over both their members and their territory .. . .. This sovereignty is not absolute.

Tribal sovereignty is subject to limitation by specific treaty provisions, by statute at the will of Congress, by portions

of the Constitution found explicitly binding on these tribes, or by implication due to the tribes’ dependent status.”

(citations omitted)).

At the time of authorship, Professor Clinton was the “Barry Goldwater Chair of American Institutions, Arizona

State University. B.A., 1968, University of Michigan; J.D., 1971, University of Chicago. The author also serve[d] as

the Chief Justice of the Winnebago Supreme Court and as an Associate Justice of the Cheyenne River Sioux Tribal

Court of Appeals and the Colorado River Indian Tribal Court of Appeals.” /d. at n.al.

-17-

Federal Supremacy Clause for Indian Tribes, 34 Ariz. St. L.J. 113, 115 (2002) (“[T]here is no

acceptable, historically-derived, textual constitutional explanation for the exercise of any federal

authority over Indian tribes without their consent manifested through treaty.” (emphasis added)).

As current Principal Chief David Hill explained to current Oklahoma Governor Kevin Stitt

just a few weeks before the District Court published the opinion that is presently being appealed,

“the Muscogee (Creek) Nation has entered into numerous treaties with the United States, and, as

you know, Article VI of the U.S. Constitution clearly upholds these treaties as the supreme law of

the land, and every judge and every state shall be bound thereby.”

Additionally, holding steadfast to the Treaty is vital for the continued sovereignty of the

Nation. Treaties protect against encroachment on tribal sovereignty. E.g. Mf/cGirt Amicus Brief,

see also United States v. State of Wash., 157 F.3d 630, 647 (9th Cir. 1998) (“Thus, whatever the

status of the state law at the time of the Treaties or today, the Treaties represent the supreme law

of the land and give to the Tribes the right to take shellfish from private tidelands.”). As the

Nation’s own Code recognizes, the Treaty is essential to the continued survival of the Nation. See

MCNA 27, § 1-101 (identifying that “[t]he authority of the ... Nation to adopt this title 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)); see also McGirt, 140 S. Ct. at

2476 (““[T]he most authoritative evidence of the Creek’s relationship to the land lies not in these

scattered references; it lies in the treaties and statutes that promised the land to the Tribe in the

first place.”).

5 See Principal Chief David — Hill, FACEBOOK (Aug. 30, 2023), —_ available at

hitps://www.facebook.com photo? fbid=86 10324257838 1 8&set=pcb.86 1036559116738 (Posting a letter from David

Hill to Kevin Stitt).

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Even arguing that a portion of the Treaty of 1866 is void risks impinging on the Nation’s

sovereignty. As the District Court noted:

The Nation cannot choose to select and rely on portions of the Treaty to which it

points as evidence of the tribe’s intact reservation, and also negate clear language

entitling descendants of a segment of the Dawes Final Roll — the Creek Freedmen

— from eligibility for citizenship .. . . Either the Treaty in its entirety is binding or

none of it is.

R. 111 at 14. (emphasis added)). In recognition of this fact, the Cherokee Nation reinforced their

commitment to their Freedmen in the wake of the United States Supreme Court’s AfcGirt decision

(despite their treaty requiring Freedmen citizenship with less clear language than that of Article 2):

As our people rejoice the ruling in McGirt, and expect a similar determination in

pending litigation before the Oklahoma Court of Civil Appeals, may we be

reminded that the Creek Nation’s rights to self-governance and the recognition of

its reservation was dependent upon its 1866 Treaty. Likewise, Cherokee Nation’s

pathway to similar recognition requires upholding the 1866 Treaty, not abrogating

it. Our ancestors suffered unspeakable atrocities in their fight to preserve culture,

language, traditions, values, and right to self-governance. Any calls by the

government or the people demanding a new amendment to the Constitution, a

Constitutional Convention, or the passage of other laws, for the sole purpose of

denying the right of citizenship to Freedmen descendants, must only be seen as

politically and or socially motivated acts. Such words shall never be law.

In re Effect of Cherokee Nation v. Nash, 16 Am. Tribal Law at 275. The Nation’s arguments

threaten the vitality of the Treaty, but also allow for future encroachments on the Nation’s

sovereignty and pose a grave risk to the Nation. Treaty abrogation must remain unequivocal.

B. The Board’s Denial of Citizenship Violated Federal and MCN

Principles of Treaty Interpretation, Application, and Precedent.

The Treaty unambiguously mandates that Freedmen have citizenship rights. Canons of

treaty interpretation further support granting Freedmen citizenship. Treaty interpretation must

follow the original meaning of the terms at signing and may not “favor contemporaneous or later

practices instead of the laws Congress passed.” AM/cGirt, 140 S. Ct. at 2468; see also Washington

St. Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000. 1016 (2019). Moreover, when

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interpreting treaty language, “the language [must] be understood today . . . as that same language

was understood by the tribal representatives in 1800s when the treaty was negotiated.” Seminole

Nation Dey. Auth., 2000 WL 33976514, at *2; see also Muscogee (Creek) Nation v. American

Tobacco Co., 2 Mvs. L. Rep. 376, 381 (1998). Critically, if something is stated in plain language—

as it is in Article 2—this Court will not place a different meaning on the words. Tiger v. Muscogee

(Creek) Nation Election Bd., SC 07-04 (Muscogee (Creek) 2008).

The Board does not suggest that Article 2 never conferred upon Freedmen and their

descendants citizenship in the Nation. Nor could they, as that language 1s clear:

[T]he many persons of African descent . . . residing in said Creek country under

their laws and usages, or who have been thus residing in said country . . . 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.

Treaty, art. 2 (emphasis added); see also All, WEBSTER’S UNABRIDGED DICTIONARY (1860 Edition)

("1. Every one, or the whole number of particulars. 2. The whole quantity, extent, duration,

amount, quality, or degree... . This word signifies, then, the whole or entire thing... .”); Mclean

v. United States, 226 U.S. 374, 383 (1912) (“All excludes the idea of limitation.”). That Freedmen

were entitled to citizenship under provisions such as Article 2 was clear at the time of, and

immediately after, the Treaty’s ratification. Infra at 24-25. As such, Article 2 unambiguously

extends citizenship to the descendants of Creek Freedmen.

Refusing to acknowledge these well-established principles of Treaty interpretation, the

Board proposes two ex post facto caveats to the clear meaning of Article 2. First, the Board

contends that “the Treaty did not preclude that Freedmen descendants” future applications for

citizenship could be subject to terms agreed to by the Treaty parties that might ultimately prevent

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the descendants from becoming citizens.” App. Br. at 24. But that is squarely foreclosed by the

Board’s failed argument of treaty abrogation. See generally id. (declining to mention the word

“abrogated” aside from one reference to the alleged inadmissibility of evidence brought by plaintiff

at trial, id. at 7); see also supra at 14-18.

Second, the Board argues that the “Treaty language does not guarantee that all Freedmen

descendants forever will automatically be citizens of the Nation,” positing that the Treaty only

“gives Freedmen descendants the right to become citizens, which right includes the right of all

citizens to vote on constitutional limitations to citizenship that might exclude the Freedmen

descendants’ future descendants, as noted in Harjo, supra.” App. Br. at 24.'® This baseless

assertion is contradicted by the plain text of the Treaty. The Treaty guarantees that Freedmen, “and

their descendants ... 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, ... and the laws of the said nation shall be equally binding upon and

give equal protection to all such persons.” Treaty, art. 2 (emphasis added).

This clause grants perpetual citizenship to Creek Freedmen as a class. So long as “native

citizens” enjoy citizenship in the Nation, then “descendants” of Freedmen “shall have and enjoy”

that right. Jd. The Citizenship Board does not even attempt to explain how “descendants” could

somehow be so time-limited. Construing the Treaty as the Board suggests (without ever actually

'6 The Board mistakenly relies upon Harjo, 420 F. Supp. 1110, for the proposition that “[t]he Treaty [of 1866] gives

Freedmen descendants the right to become citizens, which right includes the right of all citizens to vote on

constitutional limitations to citizenship that might exclude the Freedmen descendants’ future descendants .. . . App.

Br. at 24. As the Board concedes, this was merely “the Court recogniz[ing] the United States position... . [,]” id. at

22. or at least the position of the DOI (and not the whole of the federal government as that position is manifested

through laws or treaties passed through bicameralism and presentment). Indeed, the Harjo court was clear that, in that

case, “[t]he issue [wa]s_not who is entitled to membership in the tribe or to vote in tribal elections . .. .” 420 F. Supp.

at 1117 (emphasis added). Accordingly, even if the Harjo Court was opining on the Treaty, it was dicta. And dicta of

a foreign district court is certainly not binding on this Court. Just as the court in Harjo, this Court may find “the

Interior Department's later interpretations . .. utterly untenable... .” /d. at 1129.

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coming to terms with the words of the Treaty) is to “utterly ignore the meaning of the word

‘descendant’ as defined by the best authors[:] ‘one who descends, as offspring, however remotely’

... [5] ‘Any one proceeding from an ancestor; offspring’ . . . ‘issue of the body of the person

named, of every degree[;]’ . . . ‘those who have issued from an individual, including his children,

grandchildren, and their children, to the remotest generation.” Tichenor v. Brewer’s Ex’r, 33 S.W.

86, 87 (Ky. 1895) (citing Webster, Stormouth, Rapalje and Lawrence, and Bouvier close in time

to Treaty’s enactment).

The plain meaning of descendants also comports with how “that same language was

understood by the tribal representatives in 1800s.” Seminole Nation Dey. Auth., 2000 WL

33976514, at *2. The historical record shows that Confederate Creeks who enslaved Creeks of

African descent were violently anti-Black, allied with the South, and opposed Freedmen

citizenship. Supra at 3 (discussing that delegation’s opposition to Freedmen citizenship during the

Treaty’s negotiation). If the Treaty language was understood to mean that the Nation could stop

recognizing Freedmen citizenship at any point, then the Confederate Creeks* strong opposition to

Article 2 makes no sense. In fact, there is voluminous evidence that the Nation’s representatives

at the time of signing the Treaty and shortly thereafter understood the Treaty in the same way its

plain language requires: Creek Freedmen are, and forever shall be, citizens of the Nation. See infra

at 23-25 (discussing the practical construction of the Treaty). The Board's alternative explanation

entirely fails to address the actual words of the Treaty.

Third. the Board seizes upon a routine provision in the Treaty to attempt to inject ambiguity

into the Treaty’s plain meaning. App. Br. at 17, 24. But the provision to which the Board points is

merely a restatement of the unfortunate but well-established principle that Congress can

unilaterally restructure a treaty. provided it does so unequivocally. See supra at 14-15. This basic

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