Black Creeks’ quest for tribal recognition isn’t over yet, as the Muscogee (Creek) Nation appeals a decision that could open up a path to citizenship for hundreds of people.
A judge for the tribe in Oklahoma recently ruled that Rhonda Grayson and Jeff Kennedy — two descendants of Black people who had been enslaved by the tribe — are eligible for citizenship.
For Damario Solomon-Simmons, the civil rights attorney representing Grayson and Kennedy, this under-discussed issue is personal: His ancestor Cow-Tom was one of the people who signed an 1866 treaty that expanded tribal citizenship.
The legal and political battle over enrollment has gained more prominence over the past few years. For instance, the Cherokee Nation in 2021 wiped from its constitution language that had restricted the rights of Black descendants, known as Freedmen. But the Muscogee (Creek) Nation insists that, because it has the power to govern itself, it determines who receives citizenship.
The tribe’s citizenship board denied Grayson and Kennedy’s applications in 2019.
David Hill, the principal chief of the Muscogee (Creek) Nation, acknowledged in a 2021 letter the difficulty and necessity of confronting this history of race and power.
“The question of the enrollment status of the descendants of Creek Freedmen is an extremely complex one,” he wrote, “born in an era when African Americans and Native Americans alike faced traumatic injustices at the hands of the U.S. government. … When these issues arise, they are opportunities that allow us to reconsider if our policies are still reflective of who we are as a Nation.”
After the Civil War, the Muscogee (Creek) Nation was required to grant citizenship to the Black people it had formerly enslaved. But a 1979 constitutional amendment defined citizenship as “Indian by blood” and effectively banished Freedmen from the tribe.
Notably, this wasn’t bondage in the traditional sense, but rather kinship slavery, where Black people “were often adopted into the owner’s clan where they participated in cultural ceremonies and spoke the Mvskoke language,” District Judge Denette Mouser noted in her opinion. In order to “civilize” tribal nations, the U.S. government during the late 18th and early 19th centuries forced them to privatize their land and embrace slave labor.
To discuss the case’s stakes and the next phase, Capital B spoke with Solomon-Simmons. Our conversation has been lightly edited for length and clarity.
Capital B: Why do you frame this struggle as a present-day Plessy v. Ferguson, the 1896 case in which the U.S. Supreme Court held that racial segregation laws didn’t violate the 14th Amendment’s Equal Protection Clause?
Damario Solomon-Simmons: Plessy v. Ferguson was about a mixed-race man, Homer Plessy, who was basically white passing and trying to get on a train. But the law at the time was, “Hey, one drop of Black blood makes you Black, so we can discriminate against you.”
That’s essentially what’s happening with the Muscogee (Creek) Nation. It’s saying that no matter how much quote-unquote Creek blood you have, if you have one drop of Black blood, you’re on the Freedmen roll, and therefore we don’t recognize you.
Why is this recognition important to Black Creeks?
It’s extremely hurtful to strip away people’s identity, to come in and say that you’re no longer going to recognize who they’ve been for more than a century. It erases legacies. And that’s not even including the tangible, monetary benefits that come with being a member of the Muscogee (Creek) Nation that you’re entitled to.
What I mean by that is that when there are settlements or cases related to breaches of treaties that happened in 1814 or 1832 or 1866 and your family was a citizen of the nation at that time but you’re not a citizen today, they’re taking resources from you. They’re stealing from you.
Could you dive into that a little bit more? What are Black Creeks missing out on because of this lack of recognition?
We’re missing out on federal health care. We’re missing out on education scholarships and stipends. There’s a whole school, Haskell Indian Nations University, that you can go to if you’re a tribal citizen. We’re missing out on housing. There are programs within the Muscogee (Creek) Nation where if you need a house, they’ll build you a house.
During the COVID-19 pandemic, the Muscogee (Creek) Nation received a couple billion dollars through the American Rescue Plan Act. Each individual Creek citizen received $4,500; Creek Freedmen didn’t receive any of that. The Muscogee (Creek) Nation, like many other Native American nations, received their vaccines earlier than the general public and could help especially vulnerable citizens.
What happens next with the case?
The Muscogee (Creek) Nation just certified the record for appeal, and the defendants, the nation, will be filing their opening brief in about 30 days. We then have 30 days to respond to that.
We’re also calling on Kristen Clarke — the assistant attorney general for the Civil Rights Division at the U.S. Department of Justice — to intervene in this case and file what’s called a statement of interest. That’s basically an amicus brief, and the U.S. would be saying, “Listen, we have an interest to make sure that federal law is upheld and that racial discrimination is prohibited — regardless of where it occurs.”
This isn’t just a few people here in Oklahoma trying to make some moves. There are Black Creeks who’ve been fighting this issue since 1979.