By: Ashleigh Fixico

On July 22, 2021, one year after the Supreme Court affirmed the Muscogee (Creek) Nation’s (“Nation”) reservation boundaries in McGirt v. Oklahoma, Representative Danny Davis (D-IL) introduced H.R. 4637, a bill to sever the United States’ government-to-government relationship with the Muscogee (Creek) Nation until it restores citizenship to the Mvskoke[1] Freedmen. The Mvskoke Freemen are the descendants of freed slaves who gained their freedom and tribal citizenship after the Civil War. H.R. 4637, a shortsighted attempt at ensuring racial equity, not only infringes on the Nation’s exclusive authority over internal tribal issues[2], but it also infringes on the very treaty it seeks to enforce.

Racism exists among Mvskoke people. In fact, some Mvskoke people owned slaves. However, such broad generalizations of racism deny the history of chattel slavery and race relations within the Nation. After 1760, a small minority of Mvskoke people, known as the Lower Creeks, began to embrace property in land and black chattel slavery, as well as endorse a centralized Mvskoke government that served to protect their wealth.[3] However, the majority of Mvskoke people, known as the Upper Creeks, opposed both slavery and the accumulation of private wealth, as both contradicted traditional Mvskoke understandings of personhood and property. [4] Eventually, these issues tore the Creek Confederacy apart and led to the Red Stick War in 1813, an inter-tribal civil war that exacerbated American demands for Mvskoke land cessions that would ultimately lead to forced removal for all Mvskoke people, regardless of which faction they supported.[5]

The division between the Lower Creeks and the Upper Creeks survived removal as plantations were established in Indian Territory and chattel slavery among the Mvskoke persisted.[6] When the Civil War came, many of the Lower Creeks supported the Confederacy, not just to defend the institution of slavery, but to also protect the Nation from a strong federal government that had forced them from their ancestral homelands a mere 30 years prior.[7] The Upper Creeks, however, either supported the Union or tried to remain neutral by fleeing to Kansas. Despite the lack of conclusive support for either side, the United States, as punishment for those who supported the Confederacy, indiscriminately forced all Mvskoke to sign the Treaty of 1866.

The Treaty of 1866 ceded 3,250,563 acres of Mvskoke land in Indian Territory as punishment for supporting the Confederacy.[8] The treaty also abolished slavery within the Nation and provided former slaves Mvskoke citizenship, which H.R. 4637 seeks to enforce:

[A]s there are among the Creeks many persons of African descent, who have no interest in the soil … lawfully residing in said Creek country under their laws and usages, or … may return within one year of ratification … and their descendants and such others of the same race as may be permitted by the laws of the Creek 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, and all others, of whatsoever race or color, who may be adopted as citizens or members of said tribe.[9]

The following year, the Nation enacted its first written constitution, but it did not address citizenship.[10] In 1898, the Curtis Act confirmed the Mvskoke Freedmen rolls created in 1867 by J.W. Dunn, a federal Indian agent, and directed that all persons whose names were found on such rolls and their descendants were to be enrolled along with other Black persons as may have been admitted under the laws of the Nation.[11] Subsequently, the Five Tribes Act, passed in 1906, limited the Mvskoke Freedmen roll to those persons listed on the 1867 Dunn Rolls and those lawfully admitted to citizenship in the Nation.[12] More importantly, the Five Tribes Act expressly prevented names from the approved Freedmen rolls to be transferred to the roll of citizens by blood (“blood rolls”).[13]

After a century of turmoil and bloodshed, the Oklahoma Indian Welfare Act (“OIWA”) became law in 1936 and allowed the Nation to organize as a tribal government much like the 1934 Indian Reorganization Act did for other tribal nations across the country.[14] At first, the Nation rejected the OIWA because the Five Tribes Act had granted the Secretary of the Interior the sole authority to appoint the Nation’s leader (known as the Principal Chief). This act thus prohibited the Nation from electing its own leaders and granted the federal government substantial influence over the Nation’s organization under the OWIA.[15] Finally in 1970, 26 years after the OIWA was passed, Congress passed the Principal Chiefs Act which allowed the Mvskoke people to elect its first Principal Chief since 1899.[16] After such an election, the Nation began to organize itself under the OIWA by amending the 1867 Constitution.

In 1979, the Muscogee (Creek) Nation ratified the amended constitution that is still in effect today. The 1979 Constitution allowed the Nation greater self-determination and the power to exercise its inherent sovereignty. More importantly, it expressly limited citizenship to persons who are Muscogee (Creek) Indian by blood based on the final rolls provided by the Five Tribes Act of 1906.[17] Accordingly, the Nation’s citizenship code defines “Muscogee (Creek) Indian by blood” as any person listed on the 1906 rolls with a quantum of Muscogee (Creek) Indian blood or persons not enrolled with a separated racial status listed in lieu of Muscogee (Creek) blood such as Cherokee, White, Spanish, etc.[18] Thus, the Mvskoke Freedmen were effectively excluded from receiving tribal citizenship, which H.R. 4637 seeks to correct by holding the Muscogee (Creek) Nation to its treaty obligations created by the Treaty of 1866.

As Congress calls on the Nation to fulfill its treaty obligations, it must also fulfill its own by refraining from interfering with the Muscogee (Creek) Nation’s rights, laws, privileges, and customs—which includes the right to determine tribal citizenship. The Treaty of 1866 expressly provides that federal legislation “shall not in any manner interfere with or annul [the Nation’s] present tribal organization, rights, laws, privileges, and customs.”[19] Threatening to sever the federal trust responsibility until the Muscogee (Creek) Nation restores citizenship to Mvskoke Freedmen is a direct affront to tribal sovereignty and is yet another example of Congress’s hypocrisy in dealing with tribal nations.

There is no denying that racism against black people have fueled arguments against restoring tribal citizenship for Mvskoke Freedmen. However, racism is not the sole reason why Mvskoke people resist granting citizenship to Mvskoke Freedmen. Rather, a long history of dispossession and paternalism by the federal government has left many Mvskoke people hesitant to accept Mvskoke Freedmen into the Nation. Less than two generations ago, the Nation was concerned with creating a strong government for the Mvskoke people. This concern is most evident in minutes from a National Council meeting in which the need for a new constitution was discussed. Harley Little, Superintendent of the Creek Agency, encouraged those in attendance to adopt a strong constitution that would “keep the Creek Indian in control.”[20] He emphasized that there was a difference between “Citizens of the Creek Nation” and “Creek Indians,” which he also referred to as full bloods.[21] His use of full bloods to refer to “Creek Indians” harkens back to the Red Stick War where the Lower Creeks, who were more likely to be mixed-race and assimilated, while the Upper Creeks, who were more traditional and often full blood Mvskoke. With President Andrew Jackson’s support, the Lower Creeks succeeded while the Upper Creeks suffered devastating losses. After the Red Stick War, the Lower Creeks signed the removal treaty that ceded all Mvskoke claims east of the Mississippi and forced Mvskoke people from their homelands. Such events, as well as the Treaty of 1866 that ceded more land as punishment for the Civil War, were still fresh in their minds.

H.R. 4637 is a return to Congress’s paternalistic treatment of tribal nations that is incompatible with enhancing tribal self-determination. In the Mvskoke Freedmen’s most recent attempt to change the Nation’s constitution through the judicial system, the court held “that issues of tribal citizenship are of the type which should first be decided through the tribal administrative and judicial process.”[22] In fact, the court concluded the Freedmen plaintiffs “should exhaust their tribal remedies before bringing citizenship claims in federal court” because “decisions on tribal membership are an important part of self-governance.”[23]

Congress must respect the Muscogee (Creek) Nation’s exclusive authority over internal tribal issues[24] and leave the issues of Freedmen citizenship and racial inequity to the sovereign best equipped with addressing it: the Muscogee (Creek) Nation.

[1] This blog will use the traditional spelling of “Muscogee” interchangeably with “Creek” to describe the community and people.

[2] Harjo v. Kleppe, 420 F. Supp. 1110 (D.C. 1976).

[3] David A. Chang. Color of the Land: Race, Nation, and the Politics of Landownership in Oklahoma, 1832-1929 (2010) at 18.

[4] Id. at 20.

[5] Id. at 24.

[6] Id. at 29.

[7] Id. at 36.

[8] Treaty with the Creeks, 1866, U.S.-MCN, June 14, 1886.

[9] Id. art. 2.

[10] Constitution and Civil and Criminal Code of the Muskogee Nation (October 12, 1867).

[11] Curtis Act of 1898, Pub. L. No. 55-517, 30 Stat. 495.

[12] Five Tribes Act of 1906, § 3, Pub. L. 59-129, 34 Stat. 137.

[13] Id. at § 4.

[14] Oklahoma Indian Welfare Act of 1936, 48 Stat. 1967.

[15] Supra note 12 at § 6.

[16] Principal Chiefs Act of 1970, Pub. L. 91-495, 84 Stat. 1091.

[17] Muscogee (Creek) Nation Const. § 3 (1979).

[18] Muscogee (Creek) Nation Code, Title 7 § 1-103(I) (2021).

[19] Supra note 8.

[20] Muscogee (Creek) Nation Q. Council Meeting Minutes (Oct. 29, 1977) (on file with the Muscogee (Creek) Nation National Council Office).

[21] Id.

[22] Muscogee Creek Indian Freedmen Band Inc. v. Bernhardt, 385 F. Supp. 3d 16, 24 (D.C. 2019).

[23] Id. at 21.

[24] Harjo v. Kleppe, 420 F. Supp. 1110 (D.C. 1976).

Ashleigh N. Fixico is a citizen of the Muscogee (Creek) Nation from Seminole, Oklahoma. She is a 2L and is the President of the Native American Law Student Association (NALSA). Most recently, Ashleigh clerked with the Native American Rights Fund in Boulder, Colorado. Ashleigh is dedicated to enhancing tribal economic development and fostering greater tribal self-determination. Her personal interests include spending time with her four-legged son Joxie, trying new things, and cooking for her family.