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Excerpted From: Trevion Freeman, For Freedmen's Sake: The Story of the Native Blacks of the Muscogee Nation and Their Fight for Citizenship Post-Mcgirt, 57 Tulsa Law Review 513 (Winter, 2022) (425 Footnotes) (Full Document)
On August 23, 2020, Vanessa Hall-Harper, a councilwoman for the City of Tulsa representing District 1 in Oklahoma, hosted a discussion with Eli Grayson on the Creek Freedmen, “The Forgotten Black People.” Like many events and conversations in 2020, the Zoom discussion was devoted to the subject of McGirt v. Oklahoma, the recent Supreme Court decision, and how its ruling affects Black people in Oklahoma. Grayson, a tribal citizen of the Muscogee (“Creek”) Nation, began his discussion on how he became involved with the Creek Freedmen issue as the former president of the California Muscogee Creek Association. A Racoon Clan and Eufaula Canadian tribal town descendant, Grayson described receiving a phone call from the Creek Chief who explained that he had received a message from a fellow Creek citizen stating “Eli Grayson opened up the California Creek meetings to niggers.” This illuminating scenario describes a vital issue that is a reality for the Freedmen of the great five Sovereign Nations of Eastern Oklahoma: “Oklahoma tribes are exclusive if the hyphenated Indian is Black and inclusive if the hyphenated Indian is white.”
In Article 2 of the Treaty of 1866, the treaty rights relevant to the McGirt decision, the Muscogee Nation and the United States Government affirmed that freed Slaves formerly in bondage by Creek Indians were entitled to full citizenship rights as tribal members of the Muscogee Nation. Today, over 155 years have passed since the signing of the Treaty, and the Black descendants of AfricanSlaves of the Muscogee Nation (commonly referred to as Creek Freedmen) should be enjoying the benefits and privileges of their rightful tribal citizenship. However, when a nation (e.g., the Muscogee Nation) “commit[s], in the words of W.E.B. DuBois, 'hideous mistakes' and 'frightful wrongs”’ under the guise of sovereignty without any proper repercussions or redress for the victims, there lies the tragedy of the Creek Freedmen. By extinguishing tribal citizenship of the Creek Freedmen in the decades since the agreement, the Muscogee Nation has failed to honor the Treaty by turning a blind eye to the “Native Black[s]” of the Muscogee Nation.
Recently, the Supreme Court in McGirt affirmed that treaty rights granted in the Treaty of 1866 are still intact when it held that Congress never disestablished the Creek reservation under Article III. For the Freedmen of the Muscogee Nation, the reasoning of the McGirt decision was simple. Since the highest court in the land provided a newly illuminated path for discussions of the Treaty of 1866, courts should find that the Freedmen are rightfully entitled to full citizenship under the same Treaty. However, the truth is much more perplexing. Because of Sovereign Immunity and the lack of clarity regarding if tribes can abrogate their own treaties, there may not be a clear legal path for the Creek Freedmen to legally ensure their citizenship rights. This Comment confronts the past and ongoing tragedy of the Creek Freedmen and argues that in light of McGirt (which is premised on the importance of honoring treaty promises) Congress, courts, and Tribal Nation's should therefore honor their solemn promise to the “African Creeks” of the Muscogee Nation under the Treaty of 1866.
Part II of this Comment first provides a historical foundation of Federal Indian Law, chiefly highlighting areas relevant to the Freedmen issue. This is principle in understanding the rights and governance of a federally recognized tribe such as the Muscogee Nation. First, this section explains tribal sovereignty by examining federal recognition of Indian Self-Government. It will then define what an “Indian” is by analyzing the varying definitions of the term to understand that an individual can effectively be defined as an “Indian” under a specific tribe but not under federal law. Next, this section defines the scope and limitations of the “Contours of Federal Plenary Power,” including the government's power over Indian Affairs. This part will also analyze and interpret tribal membership. Part II concludes by inspecting the relationship of tribes and the federal government in their tribal treaty rights and assessing the power of tribal sovereignty in membership acceptance, with particular focus on courts' use of Sovereign Immunity to bar suits against the tribe. The courts and Congress have given Creek Freedmen, and others seeking tribal membership, an uphill battle that will always place them on the losing side if they are barred from filing suit. If the Freedmen are barred from filing suit via the federal court system and can only use the tribal courts to seek a remedy, then will they truly get justice?
Part III provides a brief history of each of the five major Oklahoma tribes relationships with AfricanSlaves and their descendants, the Freedmen. Chiefly, it assesses the legal controversies between the Freedmen and the respective tribe in their fight for citizenship rights. This provides the opportunity to understand that following the Civil War, the Cherokee, Chickasaw, Choctaw, Seminole, and Muscogee “identit[ies] [were] socially and politically constructed around hegemonic notions of blood, color, race, and culture that permeate[ed] discourses of social belonging” within the Tribes and the United States. An understanding of previous Freedmen litigation lays the foundation for what the Creek Freedmen have to overcome to reach full citizenship within the Tribe.
Part IV presents a deeper focus on the Muscogee Creek Freedmen's most recent legal controversies in their fight for inclusion and citizenship. Representative of this fight is Muscogee Creek Indian Freedmen Band, Inc. v. Bernhardt, in which the Supreme Court of the Creek Muscogee held that the Creek Freedmen “failed to produce sufficient evidence that applying for citizenship through the [Muscogee Nation] ... Board of Citizenship, and appealing any adverse decisions through the tribal courts, would be futile.” Federal and tribal court suits in cases such as Muscogee Creek Indian Freedmen Band, Inc. and Ron Graham v. Muscogee (Creek) Nation Citizenship Board present evidence that the Creek Freedmen have to form a clearer stratagem in their uphill battle for citizenship, one void of simple justiciability errors.
Part V critiques the Muscogee Nation's use of Sovereign Immunity as a sword to damage the Creek Freedmen's ability to gain citizenship. If tribes such as the Muscogee Nation have the ability to argue Sovereign Immunity under Santa Clara Pueblo v. Martinez, then the Muscogee Nation will always have the upper hand against the Freedmen within the courts. Fundamentally, “racism is fueled toward Freedmen descendants every time [the Creek] dismisses concerns about the nation's action based on sovereignty.” Further, the Muscogee Nation's Constitution of 1979, which mandates that citizenship is determined by blood and excludes the Freedmen, is in violation of Article 2 of the Treaty of 1866. Article 2 provides that former freed Slaves and their descendants are subject to the same rights as “native citizen[s].” Since the enactment of the Constitution in 1979, the question remains: can tribes abrogate their own treaties? Lastly, McGirt is analyzed as an aid to the Creek Freedmen in their fight.
[. . .]
Declarative cries of “I can't breathe” and “Black Lives Matter” spattered across the days, weeks, and months of the summer of 2020. This international protest for social justice and equality did not just erupt as the nation gripped with horror and anger as Breonna Taylor and George Floyd's Black lives were overtaken by White supremacy. No, it erupted because in every city, there is a proverbial George Floyd or Breonna Taylor, individuals and families who feel in one way or another that they have been let down by the entity which swore to protect them. The idea of broken promises for the AfricanAmerican within the United States is not a new issue. As the Civil War reached its end, Union General William T. Sherman issued Special Field Order No. 15 on January 16, 1865. The order awarded recently freed Slaves a right to forty acres and a mule each. However, this promise was overturned in the fall of 1865, by Lincoln's successor and southern sympathizer Andrew Johnson.
Like the Creek Freedmen, it is the idea of broken promises that laid the foundation for the demand of justice, equality, and equity in the summer of 2020. Therefore, it should not be considered ironic that the Supreme Court decision of McGirt fell right upon the heartbeat of this social and civil rights movement. Although laid in legal reasoning, for its holding of the non-disestablishment of the Muscogee Nation, at its core, Justice Gorsuch's opinion is about keeping promises.
Speaking for every AfricanAmerican living under the JimCrow rules of the 1960s, Civil Right Activists Fannie Lou Hamer stated in a now-famous speech, “'[i]'ve been tired so long, now I am sick and tired of being sick and tired, and we want a change. We want a change in this society in America because you see, we can no longer ignore the facts.” On February 23, 2021, the Cherokee Nation could no longer ignore the facts. In a unanimous decision, the Tribe's Supreme Court ruled in favor of removing the word “by blood” from all tribal laws, including the Cherokee Nation's Constitution. Like the Creek Freedmen, this decision uplifted the burden which denied descendants of the Cherokee Freedmen the rights and obligations of a Cherokee citizen. According to the Cherokee Nation's Attorney General, Sara Hill, “Cherokee citizens of Freedmen descents are simply this: Cherokee citizens.”
U.S. Representative Maxine Waters, in her capacity as chairwoman over the powerful House Committee for Financial Services has also decided to not ignore the facts. On September 7, 2021, Representative Waters introduced H.R. 5195 which provided for the reauthorization of the Native American Housing Assistance and Self Determination Act (“NAHASDA”). A law that grants the “Five Civilized Tribes” of Eastern Oklahoma millions in yearly housing and community development funds could now be withheld if tribes such as the Muscogee Nation fail to comply with their promise to their Freedmen. As a senior member of the Congressional Black Caucus, Representative Waters understands that the liberation of AfricanAmericans in their fight for equity and justice is tied up with the Creek Freedmen issue. Nevertheless, introduction of a house bill such as H.R. 5195 is meaningless if the truth of Representative Waters words are not felt by the entirety of Congress with the passage of such a legislation.
After approving the new Constitution for the Cherokee Nation, Secretary of the Interior Deb Haaland stated that the Cherokee Nations “actions demonstrate that Tribal self-governance is the best path forward to resolving internal Tribal conflicts. We encourage other Tribes to take similar steps to meet their moral and legal obligations to the Freedmen.” However, what if the racism is far too great of burden to overcome for the Creek Freedmen? The Muscogee Nation has continued to ignore the facts of their promise. The “sick and tired” Freedmen are still within that proverbial burning building, with the only exits being blocked by Sovereign Immunity and the Creek's unlawful abrogation of its promise of 1866. Ultimately, there is not one clear solution for the Creek Freedmen to receive their rightful citizenship rights. However, the idea of keeping promises which was foundational in McGirt must be the key to any solution for the Creek Freedmen. Thus, for the sake of keeping promises; for the sake of doing what is right; for Freedmen's sake; the Muscogee Nation, Congress, and the courts must uphold the promise of Article II of the Treaty of 1866, giving those who are “Creek to the bone” their citizenship.
Trevion Freeman is a Juris Doctor candidate at the University of Tulsa College of law and currently serves as an Articles Editor of Tulsa Law Review.
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