Freedman case oral arguments recap

Written By: Jerrad Moore

editor’s note: the following legal coverage contains word use and style that differs from Mvskoke Media and AP guidelines in order to present and best reflect the language used during oral arguments.

(OKMULGEE, Okla.) The Muscogee (Creek) Nation Supreme Court livestreamed oral arguments in SC-2023-10 to their Youtube channel on June 10, 2025. Due to a MCN SC court order, reproductions of the oral arguments were not allowed and the video was removed by the MCN SC shortly after. from Youtube.

Read this story on Mvskoke Media here. 

SC-2023-10 is a challenge filed by the Muscogee (Creek) Nation Citizenship Board of an MCN District Court decision. The MCN District Court reversed a MCN Citizenship Board decision denying Rhonda Grayson and Jeffery Kennedy’s MCN citizenship applications and ordered the board to reconsider them in accordance with Article 2 of the Treaty of 1866 between the Muscogee (Creek) Nation and the United States.

Tuesday’s oral arguments saw Graydon D. Luthy, R. Trent Shores and Barrett L. Powers of GableGotwals representing the MCN Citizenship Board. Luthy presented the arguments.

Grayson and Kennedy were represented by Jana Knott and Demario Solomon-Simmons with Knott presenting arguments.

MCN Citizenship Board arguments

Arguments began with Luthy outlining the main arguments put forth by the board. Luthy stated that there are two questions for the MCN SC to decide in the case.

The first question, according to Luthy, was if the MCN District Court violated the Nation’s sovereign immunity when it held an evidentiary trial to review the Citizenship Board’s administrative agency ruling on Grayson and Kennedy’s citizenship applications. Luthy asserted this violated MCN code provisions for review of administrative decisions and violated the Nation’s sovereign immunity.

The second question, Luthy argued, was whether or not the MCN District Court decision should be overturned for invalidating the MCN constitutional provisions for citizenship.

Luthy asserted that the Treaty of 1866 did give certain Freedmen and their descendants the rights of MCN citizens, but the treaty did not include any words that guaranteed those rights in perpetuity. Luthy pointed out that nowhere in the treaty does the MCN give up any rights to determine its citizenship in the future.

At this point Chief Justice Andrew Adams III asked if Luthy’s interpretation of the treaty provided any time frame for validity of the Freedmen rights.

Luthy responded that the treaty does not include any time frame. Luthy asserted that treaty rights were not perpetual unless words, such as forever, are used in the treaty to describe them. Luthy referenced several treaties, which all used the words “forever,” “perpetual,” and “for all time” to describe treaty rights.

Chief Justice Adams asked if there was any case law that Luthy could cite which affirms that without those words the treaty becomes stale or moot.

Luthy stated there was not, and that the Board was not arguing that the treaty had become stale or moot. The Board’s argument was that since the treaty did not include language that affirmed the rights in perpetuity, under the retained rights doctrine, the MCN retained its sovereign right to determine its own citizenship.

The retained or reserved rights doctrine is a legal principle which states that Native American tribes retain any rights not explicitly granted to a state or the United States in a treaty.

Luthy detailed how the 1979 MCN Constitution was required by the Oklahoma Indian Welfare Act to be approved by the United States Department of the Interior before citizens could vote to enact it. Luthy affirmed that the constitution was approved, specifically the citizenship requirement language.

Justice Kathleen Supernaw asked if MCN members at the time had to approve the constitution before it was sent to the DOI for its approval. Luthy agreed that they did and asserted that all MCN citizens were eligible to vote on the 1979 constitution, including the Freedmen.

Luthy pointed to an opinion issued in 1941 by the U.S. Solicitor General and asserted that it, also, approved of the provisions in the 1979 constitution.

Justice Supernaw asked if there was any documentation about how notice was given to all the MCN members about the constitutional vote and how it was presented and advertised to the people.

Luthy stated that he thought it was advertised, but he did not have any record of it being so.

Luthy pointed out that after the 1979 constitution was enacted, there was no lawsuit brought challenging it, and no complaint from the DOI about the electoral process used.

Luthy then proceeded to go through the history of the Grayson and Kennedy case, highlighting that the district court treated the case as active litigation, instead of an administrative law review. Luthy asserted that the resulting evidentiary trial and decision invalidated the MCN constitutional provisions for citizenship. Luthy stated that this meant that the district court decision should be reviewed under a de novo standard of review.

De Novo review means that the lower court’s decision in the matter under review will not be considered and the court hearing the case will do so as if it is being heard for the first time.

Chief Justice Adams asked if the standard of review was informed by Title 7 Section 4-110 sub b.

Luthy suggested that since this was a constitutional matter that code did not apply. Luthy stated that the de novo review applied to judicial cancellation of a constitutionally embedded right to determine membership.

Luthy asserted that the district court’s decision could not be upheld, unless it was determined to be required and inevitable.

Vice-Chief Justice Richard Lerblance asked why the language of the 1866 treaty that included the Freedmen as citizens was not included in the 1979 constitution.

Luthy stated that he had no idea. He affirmed that language was not in the provisional constitution submitted to the voters before DOI approval and that the voters approved it without the language. Luthy re-emphasized that the DOI and, thus, the United States, which was the counterparty of the 1866 treaty, had approved the 1979 constitution.

Vice-Chief Justice Lerblance asked if Luthy would agree that the binding nature of treaties is reinforced by the principle that the treaty rights are not terminated on statehood or other changes in governments.

Luthy agreed. Justice Lerblance then asked why the 1866 treaty would not apply to the MCN requirements for citizenship.

Luthy answered that it was because that was the decision of the people. Luthy said that certain legal principles were at work in the 1979 constitution.

The first example he used was the MCN’s existential right to define membership. He stated that the constitution shouldn’t be overruled in absence of clear indication to the contrary.

His second example referred again to the retained or reserved rights doctrine, which states that the MCN retains all rights unless they are expressly given to the United States.

Luthy reiterated that the Treaty of 1866 does not use language that gives a perpetual grant of citizenship to anyone.

Luthy asked the court if they believed that a tribe has the inherent ability to change its membership requirements. He stated that he thought the answer had to be yes. Luthy pointed out that the MCN changed the eligibility requirements for holding elected office by requiring one-quarter blood quantum.

Luthy pointed to other tribes that have increased their blood quantum requirements for membership.

Justice Lerblance pointed out that there are tribal, state, and federal laws that don’t have perpetuity language in them to which Luthy agreed. Luthy stated that the issue is not whether the treaty had language that only granted Freedmen citizenship rights for a specified time.

Luthy then asserted that the Freedmen had citizenship rights until MCN citizens exercised their right to change the citizenship requirements by voting for the 1979 constitution.

Chief Justice Adams asked if the MCN had a governmental citizenship roll based on the 1866 Treaty before the vote on the 1979 constitution. Luthy responded that they did and that the 1867 MCN constitution was silent as to membership requirements.

Chief Justice Adams asked if there was MCN case law from that period that affirmed Freedmen citizenship rights under the 1867 constitution. Luthy responded that there was case law, but it did not reference the 1867 constitution because it lacked any language about membership.

Chief Justice Adams asked if it was accurate that the 1867 constitution authorized Tribal Towns to elect representatives to the House of Kings and the House of Warriors, and some of these Tribal Towns were Freedmen towns, such as Arkansas Colored, Northfork Colored and Canadian Colored Tribal Towns.

Luthy stated that those towns were not identified by name in the1867 constitution.

Chief Justice Adams asked if those towns were allowed to elect representatives under the constitution. Luthy stated that those events happened.

Chief Justice Adams asked if there was evidence on record that Creek Freedmen were allowed to vote in the 1979 vote to adopt the constitution.

Luthy stated that he thought there was. Chief Justice Adams asked if any had been presented to the court. Luthy stated that he was unaware whether any had or not.

Chief Justice Adams asked if Luthy would have the court assume that the Freedmen were allowed to vote for the 1979 constitution. Luthy said he thought that it was generally well known within the MCN that the Freedmen did vote. Luthy asked why, if it were the case, that the Freedmen were denied the right to vote they had not filed a lawsuit on the matter in 48 years.

Chief Justice Adams pointed out that Luthy was asking the court to assume that the Freedmen participated in the vote and also that if they were disenfranchised they would file suit. Luthy stated that he thought such a suit would be inevitable.

At this point Luthy’s time for argument had expired and Jana Knott, representing Grayson and Kennedy, began her argument.

Grayson and Kennedy arguments

Knott began by pointing out that the 1866 Treaty has not been abrogated and remains the supreme law of the land. Knott stated Article II of the treaty gives Creeks of African descent and their descendants all the rights and privileges of Native citizens and that the laws of the Nation shall give equal protection to all such persons.

Knott asserted that even though the Citizenship Board did not use the term “abrogation” in their arguments before the court or in their briefing, the case was about treaty abrogation.

Knott stated that each of the arguments put forth by the board was a form of implied abrogation. Knott cited the United States Supreme Court decisions in McGirt v. Oklahoma, Minnesota v. Mille Lacs Band of Chippewa Indians, and United States v. Dion, where the U.S. Supreme Court ruled that congressional treaty abrogation must be clear and unequivocable, it cannot be implied.

Knott pointed out that it made no difference if the 1979 constitution was approved by the United States Bureau of Indian Affairs, only Congress can abrogate a treaty. The BIA approval was a federal executive action.

Knott asserted that treaty rights do not and should not ebb and flow at the whims of the executive branch, otherwise treaty rights would be abrogated every time the administration changed.

According to Knott, the U.S. Supreme Court decision in Minnesota v. Mille Lacs Band of Chippewa Indians held that executive action, in that case an executive order of the President, absent congressional authorization could not serve as the basis for the termination of treaty rights. Congress must clearly express its intent to abrogate a treaty.

Knott stated that it made no difference that the BIA approval was required by the Oklahoma Indian Welfare Act, because any federal action impacting a treaty right is evaluated under the legal framework of abrogation.

Knott continued that in United States v. Dion, the U.S. Supreme Court found that the Bald Eagle Protection Act abrogated the Yankton Sioux Tribes treaty right to hunt for bald and golden eagles. The legislative history of the act showed that Congress considered the importance of hunting the eagles to the Yankton Sioux Tribe religion, and included provisions to issue religious hunting permits to tribal members. The U.S. Supreme Court saw this as congressional treaty abrogation.

Knott then compared the Dion decision to the Oklahoma Indian Welfare Act. Knott stated that the Oklahoma Indian Welfare Act doesn’t mention treaty rights or citizenship rights of any of the Oklahoma tribes. According to Knott, nothing in the language or legislative history of the act shows congress considered any conflicts between the act and the Treaty of 1866.

Knott asserted that the denial of citizenship to descendants of Freedmen in the 1979 Constitution is a race based exclusion that violates the treaty.

Knott stated that any constitutional provision that strips Freedmen descendants of citizenship is void ab initio regardless of BIA approval.

Void ab initio is a legal term that means the action never had any legal effect.

Knott also pointed out that it is irrelevant if the Freedmen were allowed to vote for the 1979 Constitution, because treaties cannot be abrogated by unilateral tribal action.

Knott disputed that Freedmen descendants were allowed to vote.

Knott quoted the McGirt v. Oklahoma decision stating that the power to abrogate a treaty belongs to congress alone.

Chief Justice Adams asked how Knott would address the Solicitor General opinion mentioned in the Citizenship Board’s arguments.

Knott replied that the Solicitor General is an executive branch official, not Congress. Knott referred to the earlier analysis of Minnesota v. Mille Lacs Band of Chippewa Indians, which held that executive action absent congressional authorization could not abrogate a treaty.

Knott addressed the arguments put forth by the Citizenship Board that the MCN has the sovereign right to determine its citizenship. She agreed that the Nation has the right to determine its citizens, but stated that the argument relies on implied abrogation of the treaty.

Knott gave examples, specifically Santa Clara Pueblo v. Martinez, United States v. Wheeler, Merrion v. Jicarilla Apache Tribe, and Iowa Mutual Insurance Company v. LaPlante. According to Knott, these were all cases where the U.S. Supreme Court ruled that Tribal sovereign powers had been restrained or abridged by treaty or act of congress.

Knott asserted that the Treaty of 1866 clearly restricts the Nation’s sovereign right to determine its citizenship as it relates to Creeks of African descent and their descendants.

Knott pointed out that the Citizenship Boards arguments revolve around whether unilateral Tribal action can abrogate a treaty provision. She asserted that it cannot. Congress is required to abrogate the treaty through legislation or subsequent agreement.

Knott addressed the lack of “language of perpetuity” argument put forth by the Citizenship Board. She referenced the analysis put forth by Cherokee Nation v. Nash, which found that the Cherokee Treaty of 1866 did not contain language that limited in duration or expired on any condition the citizenship rights for Freedmen included in the treaty.

Knott stated that the Creek Treaty of 1866 also does not include any language that terminates, or temporarily limits, the rights granted to Freedmen or their descendants.

Justice Supernaw asked how Knott reconciled the language in Article II of the treaty with Article X, which states that the Nation agrees to any future congressional acts that might modify citizens rights in article two.

Knott reiterated that the language and legislative history of the Oklahoma Indian Welfare Act does not include any discussion of Tribal treaty rights or citizenship. She referred the court again to the Dion case as an example of treaty abrogation.

Knott also pointed out that the McGirt decision ruled that the entire treaty of 1866 was still in effect, and that it was not possible for either party of the treaty to accept one provision and deny another.

Knott addressed an earlier question from Justice Lerblance concerning why the language of the 1866 Treaty was not used in the 1979 Constitution. She stated that evidence was presented in the MCN District Court that Article III of the 1979 constitution was passed because of racial motivation.

Knott quoted a statement from Principal Chief Claude Cox to the MCN National Council on October 29, 1977. Knott quoted Cox as saying:

That’s what we’re fighting for, this blood quantum, trying to get back and let the people control. Because under the old constitution, the 1867 Constitution, you’ve lost before you’ve ever started. There were three Freedmen bands that would outnumber you today as citizens. So if we want to keep the Indian in control we’ve got to take a look at this thing and get us a constitution that will keep the Creek Indian in control.

Justice Lerblance replied that there were political implications of the 1979 constitution, to which Knott agreed.

Knott also addressed a question by Chief Justice Adams about the 1867 Constitution. Knott asserted that at the1866 Treaty negotiations, the United States made it clear that Freedmen participation in the government was a prerequisite for the reservation provisions in the treaty. The 1867 constitution was the affirmation of the treaty requirements, with Freedmen being represented in the Creek government serving in both the House of Kings and House of Warriors.

Chief Justice Adams asked what Knotts response to the Citizenship Board argument that the MCN District Court did not have the authority to issue its decision.

Knott replied that the sovereignty arguments made by the board in relation to the district court decision were a distraction from the real issue in the case, whether the 1866 Treaty has been abrogated.

Chief Justice Adams clarified that he was interested in hearing Knotts position on the argument that the board put forth that the district court should not have had an evidentiary hearing in the matter.

Knott stated she had two responses. She asserted that the nation waived its sovereign immunity for appeals of the Citizenship Boards decisions. She stated that after the case had gone a year without being assigned to a judge, Grayson and Kennedy filed a motion for the MCN Supreme Court to assume original jurisdiction, at which point the board filed a motion to dismiss, which requested that the board be afforded an opportunity to engage in the exercise of discovery and build a thorough record on all relevant facts and legal claims.

According to Knott, this board request for information that fell outside of the administrative record necessitated an evidentiary hearing. Knott pointed out that when the MCN SC declined jurisdiction, it agreed that the court would greatly benefit from an assembling of a complete record before the district court.

Knott detailed that since the Citizenship Board requested the discovery process, the board could not now claim that the district court was in error in conducting it.

Knott stated that if the MCN SC ruled that the district court proceeding was in error, the MCN SC should still rule on the constitutional question at hand because it is the only court that can do so.

Knott closed her arguments by stating that if the MCN SC holds that article two of the 1866 Treaty remains in full force and effect and the treaty is still the supreme law of the land, it must affirm the lower court’s decision.

Citizenship Board’s rebuttal

Luthy stated that the Board is not arguing that the treaty was abrogated, and in fact the board claims the treaty is in effect.

Justice Montie Deer asked if the U.S. Supreme Court could make a decision on whether the 1866 Treaty had ever been abrogated by the tribe.

Luthy stated that that was not his point, continuing that the tribe’s right to determine its citizenship is an existential right and that if that right is to be cancelled it needs to be clear that it has to be cancelled.

Luthy’s second point went back to the retained rights doctrine. Luthy stated that unless the MCN expressly gave a right to the United States in the treaty, MCN retains that right.

Luthy’s third point revolved around the language in the treaty. He stated that the language of the treaty did not give the Freedmen special rights, it gave them the same rights of Native citizens. Luthy asserted that the treaty did not give anyone, including Native citizens, rights to citizenship in perpetuity.

Luthy also asserted that the treaty did not say that the MCN was giving up the right to determine, through an election, who its citizens are.

Chief Justice Adams agreed with Luthy that Tribes have the right to pass their own laws and be bound by them. Chief Justice Adams pointed out that under MCN Title 27 section 1-101 the authority comes from MCN sovereignty and also the treaties and agreements between the MCN and the United States including but not limited to the Treaty of 1866.

Chief Justice Adams also pointed out that MCN Title 27 section 1-103 states that in all cases the MCN courts shall apply the constitution and duly enacted laws of the MCN as well as the common law of the Muscogee people as established by custom and usage, and the treaties and agreements between the MCN and the United States.

Chief Justice Adams also pointed out that the U.S. Constitution also has language concerning treaties being controlling, and asked Luthy if he agreed that the U.S. Constitution might be applicable to this situation.

Luthy stated that the U.S. Constitution as it has been applied to Indian Tribes would apply here.

The Citizenship Board’s time for rebuttal had expired at this point, but Chief Justice Adams had one final question.

He asked if Luthy could cite any precedent or language in the treaty that could affirm the notion put forth of a sunset provision for portions of the treaty.

Luthy stated that the board was not arguing that there was a sunset provision. He restated his argument that the treaty is silent on the principal issue, and since it is silent and doesn’t use words of perpetuity or give up the right to define membership in the future, under the retained rights doctrine the constitution was proper.

Luthy closed stating that ambiguity is construed in favor of the Tribe in treaty determinations.

Justice Lerblance asked why the 1866 Treaty is not the law of the land, if it had not been abrogated.

Luthy responded that the Treaty of 1866 is not abrogated by the Constitution of 1979.

Justice Lerblance asked if the 1979 Constitution had the same effect as the abrogation of the treaty. Justice Lerblance asked if the provisions of the 1866 Treaty were still applicable today.

Luthy stated that they are applicable, but included in the retained rights was the right to change the membership requirements.

Luthy pointed out that the constitution’s citizenship provisions could keep a full-blooded Creek from obtaining citizenship, if their ancestors were not on the Dawes roll.

Justice Deer asked if it was true or false that under Article III section 2 of the United States Constitution the U.S. Supreme Court has legal jurisdiction between Native Nations and the United States.

Luthy affirmed that it was true.

Justice Deer asked when the U.S. Supreme Court ever made a decision regarding this case.

Luthy stated it has not.

Justice Deer asked if it has a right to.

Luthy affirmed that if there is an actual case in controversy that goes through the system and certiorari is granted, then yes.

Justice Deer then asked if that was McGirt v. Oklahoma.

Luthy disagreed and stated that McGirt did not involve the issues in this case.

Justice Deer stated that his problem all along has been that if the United States entered this treaty with the Creek Nation, when does the United States get input on the discussions had in this case.

Luthy responded that he could offer some examples.

Justice Deer continued that he had read a case concerning a Tribal Nation in South Dakota vs the United States. He stated that the Tribe was upset that their land had been given back to non-Native people, but the U.S. Supreme Court decided that the land could not be given back, but instead compensated the tribe monetarily. Justice Deer stated that in this case the United States had input on the decision, but in this case it had none.

Luthy stated that there are all kinds of ways that the case could get to the U.S. Supreme Court. He said the United States could bring suit, which it hasn’t. He pointed out that the DOI could get involved as it has with other tribes, which Luthy also said hasn’t happened.

Justice Deer asked if those things can happen, and Luthy affirmed they could.

Grayson and Kennedy surrebuttal

Knott addressed Justice Deer directly stating that the United States can have a voice on this particular issue if Congress decides to abrogate this provision of the treaty, which she attested has not happened.

Knott reiterated that the treaty, including Article II, remains the law of the land.

Chief Justice Adams asked Knott’s response to the retained rights doctrine argument.

Knott cited Roff v. Burney as precedent, showing that tribal sovereign rights can be qualified by acts of congress and treaties. She stated that congress alone has the power to say the treaty is no longer in force on this citizenship issue. Knott attested that this has not happened.

Knott pointed out that the U.S. Supreme Court did not include the MCN Constitution in its analysis of the McGirt case, it only considered the 1866 Treaty.

Knott also pointed out that Chief Justice Adams was correct in his observation that the 1866 Treaty was incorporated into fundamental MCN law that the MCN SC must apply.

Knott stated that any constitutional provision in conflict with the treaty must yield.

In her closing statement, Knott pointed out that the 1866 treaty listed the Freedmen as “Creeks of African descent,” affirming that they were always Creeks. Knott clarified that this was evidence that the traditional values of the Creek Nation never equated citizenship with physical appearance, blood quantum, or race.

The Justices had no further questions for Knott.

With the closing of arguments, the case was submitted with the court.