H. R. 1514
IN THE HOUSE OF REPRESENTATIVES
March 5, 2019
Mr. Danny K. Davis of Illinois introduced the following bill; which was referred to the Committee on Natural Resources, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To sever United States Government relations with the Creek Nation of Oklahoma until such time as the Creek Nation of Oklahoma restores full Tribal citizenship to the Creek Freedmen disenfranchised in the October 6, 1979, Creek Nation vote and fulfills all its treaty obligations with the Government of the United States, and for other purposes.
Congress finds the following:
Historically, the Muscogee (Creek) Nation (
Creek Nation) were comprised of a confederacy of separate towns, Tribes, and peoples. Each town was a complete governmental unit in and of itself. Among those peoples were the Yamassee or Jamassi, who were reported to have emigrated from Africa prior to the European discovery of America.
As colonists and eventually nonindigenous Americans began to inhabit this area, these new residents sought to
civilize the Creek Indian. In the ensuing decades, the United States continuously and repeatedly attempted to impose, often by force, its customs, economy, religion, and political structure on indigenous groups such as the Creek Nation.
One American custom adopted by some Creek Nation citizens was the plantation economy and the reliance on chattel African slavery as a labor force. Along with enslaved Africans who were owned by Creek Nation citizens, there were also Creek Nation citizens of African descent and free Blacks openly living as full citizens of the Creek Nation.
In the 1830s, citizens of the Creek Nation were forcibly removed from their lands in the southeastern United States and forced to migrate to Indian Territory (present day Oklahoma) along a route known as the Trail of Tears. Among those persons forced to migrate were—
African individuals who were enslaved by citizens of the Creek Nation;
Creek Nation citizens of
Africans living as citizens of the Creek Nation; and
mixed blood Creek Nation citizens now known as the
Black Creeks or
Citizens of the Creek Nation were removed primarily by their traditional Tribal
town, and it was the town
Micos or chiefs who kept the Tribal rolls. This allowed Creek Nation citizens who survived the journey to reestablish their traditional towns in Indian Territory.
Removal was carried out by the military, and approximately 24,000 Creek Nation citizens were forced to travel to Indian Territory on foot or by riverboats. Due to poor planning, organization, and indifference by the Federal Government, thousands of Creek Nation citizens died on the way to Indian Territory due to exposure, starvation, and disease.
Even after removal to Indian Territory, some Creek Nation citizens continued to hold slaves until the Creek Treaty of 1866 abolished slavery in the Creek Nation.
In 1861, a faction of the Creek Nation known as
Southern Creeks executed a treaty with the Confederate States of America, severing its relations with the United States Government. Members of the Southern Creeks held positions in the Congress and military of the Confederate States of America and waged war against the United States during the Civil War. Other Creeks, known as the
Loyal Creeks, who generally resisted cultural assimilation, provided supplies, men, and support for the Union. A contingent of Loyal Creeks, which included a substantial
Black Creek component, left their homes in Oklahoma and moved to Kansas to flee Southern Creek soldiers and their Confederate allies.
The Battle of Honey Springs was a major battle that occurred in Indian Territory during the Civil War, and Loyal Creeks, including
Black Creeks, valiantly fought against the Confederacy and their allies.
In 1865, as the Civil War ended, President Andrew Johnson designated a commission to travel to Fort Smith, Arkansas, to convene a council for the purpose of negotiating a new treaty with the Creek Nation.
The members of that commission declared that a treaty with the United States
must contain certain stipulations, including that
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..
The Creek Nation’s 5-person delegation included both leaders of the Loyal Creeks and Southern Creeks. One of the members of the Loyal Creek delegation was an African Creek named Cow Tom.
The Creek Treaty of 1866 negotiations occurred between 1865 and 1866, first in Fort Smith, Arkansas, and then in Washington, DC. It was in Washington, DC, where the Treaty was signed and upon the signing of the 1866 Treaty the United States reestablished official relations with the Creek Nation.
The Creek Treaty of 1866 became the foundational legal document of the Creek Nation and established the Creek Nation as it is known today.
The Creek Treaty of 1866 declared that the Black Creeks, also known as
Creek Freedmen, were to be made citizens of the Creek Nation and to have all the rights of other Creeks Citizens.
Article II of the Creek Treaty of 1866 provides in pertinent part:
[I]nasmuch as there are among the Creek many persons of African descent … it is stipulated that hereafter these persons, lawfully residing in said Creek country, under their laws and usages, or who have been thus residing in said country, and may return within one year from the ratification of this treaty, and their descendants and such others of the same race as may be permitted by the laws of 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 said Nation shall be equally binding upon and give equal protection to all such persons ….
Virtually identical clauses relating to the citizenship of individuals of African descent within the Seminole and Cherokee Nations were negotiated, agreed upon, and added to the respective Seminole and Cherokee Treaties of 1866.
Shortly after executing the Treaty of 1866, the Creek Nation reorganized their constitutional structure, and in 1867, it created a new and expansive constitution which recognized and affirmed the full citizenship rights of Black Creeks.
The 1867 Constitution did not discriminate against Creeks of African descent, Free Black, or Creek Freedmen citizens of the Creek Nation.
In fact, upon ratifying the 1867 Constitution, the Creek Nation reconstituted its 44 traditional
towns and voluntarily created 3 additional towns (
Freedmen Towns) so the Freedmen would have equal representation in the Creek Nation’s National Council.
Also, in 1867, the Creek Nation gathered at the request of Federal Indian Agent J.W. Dunn (
Dunn) to identify and list the individual members of the Creek Nation.
As a result of that gathering, Dunn compiled a roll of the Creek Nation’s citizens, which came to be known as the
Dunn Roll. Listed on the Dunn Roll were all of the Creek Nation’s then-gathered citizens, which encompassed Creek Nation citizens with African ancestry, including Native Africans, Free Africans, and newly emancipated, formerly enslaved Creek Freedmen.
Many Creek Nation citizens were forced to leave Creek Nation territory during the Civil War because of the violence or for various other reasons. The Treaty of 1866 gave Creek Nation citizens until July 15, 1867, to return to Creek territory in order to be included on the Dunn Roll. However, Dunn completed his roll 5 months early and sent it to Washington, DC, in February 1867.
As a result, the Creek Nation created a Post-Civil War Citizenship Commission to review the applications of people who claimed they were Creek Nation citizens who should have been included on the Dunn Roll. The Creek Nation Post-Civil War Citizenship Commission reviewed several thousand applications, and admitted over 1,700 individuals and their descendants between 1867 and 1895. Numerous Native Africans, Free Blacks, and newly emancipated Freedmen were among the 1,700 individuals granted full citizenship by the Creek Nation Post-War Citizenship Commission.
In the decade after the Treaty of 1866 was enacted, individuals of African descent (Native Africans, Free Africans, and formerly enslaved African/Freedmen) worked with all other Creek Nation citizens to attempt to rebuild the Creek Nation.
However, many of the Confederate-aligned Upper/Southern Creeks refused to respect Creek Freedmen citizenship rights. In fact, on October 1, 1877, the Upper/Southern actions were rebuked by then Creek Nation Principal Chief Ward Coachman during his address to the Creek National Council:
… [A]nd inasmuch as there are Freedmen among us, whose rights under the treaty of 1866, have not by some been recognized, and in consequence thereof have been discouraged, are not improving or advancing as they might do; and the treaty relative thereto being so plain that no one can mistake or misunderstand it. I allude particularly to those known as the McGilvery or McGilbrey Freedmen whom we know belonged to our own people, were here within our country when the treaty was made and have remained among us ever since. I would recommend if necessary that some action be had recognizing the rights of all who under the treaty are entitled to citizenship and equal rights and privileges with us..
Between 1867 and 1895, the Creek Nation created numerous rolls of its citizens. None of these rolls created by the Creek Nation contained or listed blood quantum, or singled out Creeks of African descent,
Free Black Creek Citizens, or former enslaved Africans who were emancipated and accepted as Creek citizens pursuant to the Treaty of 1866.
Between 1866 and 1906, Creeks of African descent were an essential part of the Creek Nation community, as evidenced by their service in important and high positions in the Creek Nation’s government and other areas of Creek life.
In 1887, Congress passed the Dawes Act of 1887 (
The stated purpose of the Dawes Act was to prepare Indian Territory for statehood. To this end, the Dawes Act authorized the transfer of most of the land owned corporately by the Creek Nation to individual Tribal citizens.
After the passing of the Dawes Act, Congress created the Dawes Commission in 1893. Congress tasked the Dawes Commission with identifying all Creek citizens eligible for land allotment in what would come to be known as the
Congress then passed the Curtis Act of June 28, 1898 (30 Stat. 495) (
Curtis Act), directing the Dawes Commission to create 2 lists of citizens of the Creek Nation who would be eligible for land allotment, which became the following:
Creek Nation Creek Roll, which was purportedly composed only of Creek Nation citizens with Creek blood.
Creek Nation Freedmen Roll, which was purportedly composed only Creek Nation citizens who were formerly enslaved Africans and devoid of any Creek blood.
The Dawes Commission, motivated by racism, used race and Creek Nation citizens’ physical appearance to segregate Creeks of African Descent
Creek Freedmen. The
true Creeks, in the Dawes Commission’s estimation, were listed on the Creek Roll (also known as the
Blood Roll). The Creek Freedmen (individuals of African descent, regardless of whether they or their ancestors were previously enslaved in the Creek Nation) were listed on the Creek Nation Freedmen Roll.
The Dawes Commission employed the hypodescent rule, by which any individual with
one drop of
Black blood was to be considered Black and therefore belonged on the Creek Nation Freedmen Roll.
The Dawes Commission therefore enrolled many Creeks of African descent on the Creek Freedmen Roll, regardless of whether they or their ancestors were ever enslaved in the Creek Nation or of how much
Creek blood they actually possessed.
The Dawes Commission separated families by enrolling full siblings with different blood degrees and enrolling some family members on the Creek Nation Blood Roll and others on the Creek Freedmen Roll. The blood degree or blood quantum was originally to be used only for land allotment purposes.
Therefore, once the Dawes Rolls closed on March 4, 1907, Creek citizens enrolled on the Freedmen Roll and their descendants, in perpetuity, would always carry the ugly badge of slavery, regardless of whether they or their ancestors were ever enslaved, and forever legally be known as Creek Freedmen.
In 1970, Congress passed the
Principal Chiefs Act requiring the Chickasaw, Choctaw, Cherokee, Seminole, and Creek Nations to obtain approval for their voting laws for selection of each nations Principal Chief. The Department of the Interior drafted a policy stating that it was not necessary that each of these groups has identical or similar regulations, but that 3 conditions are deemed fundamental to the democratic selection of a principal Tribal official. One of the three conditions stipulated by the Department was that voter qualifications of the Creeks must be broad enough to include the enrolled Creek Freedmen citizens.
On or about August 18, 1975, the Creek Nation, through its National Council, submitted to the Department of the Interior a draft constitution (
Draft Constitution) that, among other things, contained express provisions that—
stripped individuals on the 1906 Creek Freedmen Rolls and their then-living lineal descendants of their Creek citizenship; and
prevented the unborn lineal descendants of individuals who were enrolled on the 1906 Creek Freedmen Rolls from becoming citizens of the Creek Nation.
Before the Creek Nation submitted the Draft Constitution to the Department of the Interior, the Creek Nation did not seek, obtain, or allow any input from Creek Freedmen or individuals representing Creek Freedmen interests.
Minutes from the Creek Nation’s October 29, 1977, National Council meeting reveal that one of the express goals of the Draft Constitution was to strip Freedmen and Creek Freedmen descendants of their Creek citizenship and rights. The minutes state the following:
When you go back to the old  Constitution, you are licked before you start; because it doesn’t talk about Indians, it talks about CITIZENS of the CREEK NATION. When you got down to the Allotment time, there were more that was non-Indians or half-blood or less, who outnumbered the full blood, all of these totaled about 11,000, and there were only 18,000 on the entire Roll; so, there was only 9,000 above One-half blood. That’s the reason, they lost control; the FULLBLOOD lost control. That’s what we’re fighting, this blood quantum, trying to get back and let the people control because under the old Constitution, you’ve lost before you ever started. There were three FREEDMAN bands that would outnumber you today as citizens. So, if we want to keep the INDIAN in control, we’ve got to take a good look at this thing and get us a Constitution that will keep the Creek Indian in Control..
On October 6, 1979, the Creek Nation held an election to formally adopt the 1979 Constitution and replace the 1867 Constitution.
Section 503 of the Oklahoma Indian Welfare Act (25 U.S.C. 5203), in effect since 1979, required the participation of at least 30 percent of
those entitled to vote, or the results of the election are invalid.
The total number of
entitled voters that Creek officials identified prior to the 1979 constitutional referendum did not include Creek Freedmen in an apparent effort to meet OIWA election requirements. Creek Freedmen and their descendants were denied the right to vote on the 1979 Constitution and therefore did not vote on the 1979 constitution.
Upon the dubious ratification of the 1979 Constitution, the Creek Nation illegally declared that all Freedmen were not entitled to Creek citizenship and would no longer be recognized as nor allowed to be citizens of the Creek Nation.
Thousands of Creek Freedmen descendants have been denied their Creek citizenship rights in a bold violation of the Treaty of 1866.
In violation of the Treaty of 1866, the 13th Amendment to the United States Constitution, the Principal Chiefs Act of 1970, and the Oklahoma Indian Welfare Act, Creek Freedmen have been illegally barred from participating, as voters and candidates, in every Creek election from 1979 through the present.
Currently, the Creek Nation operates under a Principal Chief elected in violation of the 1970 Principal Chiefs Act and Treaty of 1866, and a National Council constituted without Creek Freedmen representatives, in violation of the Treaty of 1866.
Since 1979, thousands of Creek Freedmen have continuously attempted to assert and regain their full citizenship rights by formally applying for Creek citizenship only to be completely ignored or summarily rebuffed. Oftentimes Freedmen applicants would be informed of their denial via a form letter from the Creek Nation, which would include some version of the following language, taken from a May 31, 2002, letter from the Creek Nation to a Creek Freedman applicant:
We are returning your letter and any other documents submitted for enrollment into the Muscogee (Creek) Nation because in checking the Dawes Commission Rolls, your ancestors were enrolled on the Creek Freedmen Rolls. If you will note from the copy you submitted there is no blood quantum listed because they are not Creek by Blood. When slavery was abolished following the Civil War, Treaties were negotiated with the Five-Civilized Tribes; the Choctaw, Cherokee, Chickasaw, Creek and Seminole Nations. The treaties conferred citizenship in the Tribes on the negroes who had been held in slavery by the Tribes. Such citizens were referred as.
A Creek Freedmen Indians or African/Black Creek Indians association was organized and continues to work to preserve the unique identity of members of the Muscogee Creek Indian Freedmen Band Association, and to protect the history, legacy, rights, and dignity of the thousands of Creek Freedmen Indians.
Beginning in 2004, 2 Creek Freedmen litigated the issue of Creek Freedmen citizenship within the Creek Nation court in Johnson and Graham v. Muscogee (Creek) Nation of Oklahoma Citizenship Board, CV 2003–54.
The Creek Freedmen contended that they and all Creek Freedmen were eligible for citizenship in the Creek Nation pursuant to the Treaty of 1866, the Muscogee (Creek) Nation Constitution, and the Creek Nation Citizenship Code.
In its March 27, 2006, opinion, the Creek Nation District Court declined to reach the substantive issues related to the Treaty of 1866. Instead, the court found that the Citizenship Board did not follow Creek Nation law, which mandated that the Citizenship Board process the citizenship applications of the Creek Freedmen.
On or about April 13, 2006, the Citizenship Board refused to comply with the Creek Nation’s District Court order to process the Creek Freedmen’s citizenship applications. On November 2, 2007, the Creek Nation Supreme Court unanimously reversed the district court decision and refused to rule on the applicability of the citizenship provisions of the Treaty of 1866.
The manner in which the Creek Nation is conducting the relationship between the United States and the Tribal entity is not in the best interest of the United States Government or the citizens of the Creek Nation, and violates existing treaties and laws governing the relationship between the United States Government and the Creek Nation.
The Creek Nation’s current refusal to recognize the citizenship rights of Creek Freedmen and to deny to Creek Freedmen all rights, privileges, protections, and benefits arising from citizenship in the Creek Nation equally and on the same basis as all other Creek Nation citizens, including, without limitation, the right to vote in Creek Nation elections, the right to run for and hold Creek Nation office, and the right to receive funds and benefits available to all others in violation of the treaty rights extended to the Creek Freedmen in a treaty agreement between the United States and the Creek Nation in the 1866 Treaty and the 13th Amendment to the United States Constitution.
The Creek Treaty of 1866 guarantees the Creek Freedmen the right to full and equal citizenship in the Creek Nation.
The Creek Freedmen are legally indistinguishable from other citizens of the Creek Nation pursuant to the Creek Treaty of 1866.
As equal citizens of the Creek Nation, the Creek Freedmen descendants are entitled to all rights, privileges, protections, and benefits arising from citizenship in the Creek Nation equally and on the same basis as all other Creek Nation citizens, including, without limitation, the right to vote in Creek Nation elections, the right to run for and hold Creek Nation office, and the right to receive funds and benefits available to Creek Nation citizens.
No Federal statute or superseding treaty has modified the Creek Freedmen descendants’ citizenship rights as granted in the Creek Treaty of 1866.
No amendment to the Creek Nation Constitution has modified nor could modify the citizenship rights of Creek Freedmen, because those rights are derived from the Creek Treaty of 1866 and not the Creek Nation Constitution.
There has been no Act of Congress expressing any intent to abrogate Article 2 of the Creek Treaty of 1866.
The Creek Treaty of 1866 is a bilateral agreement negotiated and signed by two sovereign entities utilizing their executive and legislative governmental powers. The validity of the agreement has not been contested by the Creek Nation. The Treaty of 1866 is the supreme law of the land regarding the citizenship rights of Creek Freedmen.
The Department of the Interior is obligation to protect the Creek Freedmen descendants and refuse to recognize of the Creek Nation’s government until such time as the Creek Nation affirms and restores Creek Freedmen citizenship rights. By continuing to recognize the Creek Nation and its government, elected and formed under the illegal 1979 Constitution, the Department of the Interior has violated and continues to violate its own precedent and policy, and has breached and continues to breach its responsibility to the Freedmen descendants pursuant to Article 2 of the Treaty of 1866.
The Creek Nation has received and continues to receive Federal funding distributed by the Department of the Interior for the benefit of individual Creek Nation citizens. The Department of the Interior has knowledge that the Creek Nation distributes funds under these Federal programs in a discriminatory manner by excluding Creek Freedmen from participation in and receipt of the benefits of the programs by virtue of their status as Creek Freedmen.
Severance of relations with the Creek Nation
The United States hereby severs all relations with the Creek Nation, including all financial obligations or otherwise, until such time as the Creek Nation meets all of its treaty obligations and other Federal statutory obligations (including all obligations under the Treaty of 1866, the Principal Chiefs Act, holding elections for Tribal leaders that are in compliance with the Act, and has restored the rights of all Creek Freedmen disenfranchised from the Creek Nation), as determined by a final certification under subsection (d).
Compliance with the Requirements of the Act
The Secretary shall coordinate with all departments and agencies of the Federal Government to ensure that every effort is being made by the Federal Government to comply with this Act.
Not later than 30 days after the date of the enactment of this Act, and annually thereafter until the final certification under subsection (d), all departments and agencies of the Federal Government shall submit a report to the Secretary describing—
all Federal programs under their jurisdiction that provide financial assistance and other services to the Creek Nation; and
the efforts undertaken by the department or agency to comply with the requirements of this Act.
Until the Secretary certifies to Congress that the Creek Nation is in compliance with its treaty obligations, the Secretary shall submit monthly public reports to Congress on the status of the Federal Government’s efforts to ensure that all departments and agencies of the Federal Government are in compliance with the requirements of this Act.
Other Freedman Indians
Not later than 6 months after the date of the enactment of this Act, the Secretary shall issue a public report to Congress on the status of Freedmen in the Creek, Choctaw, Chickasaw, Creek, and Seminole Nations of Oklahoma. The report shall address whether each of those Indian Tribes is in compliance with all treaty obligations and Federal laws with respect to its Freedmen members, the level of participation of its Freedmen members in Tribal leadership positions, Tribal benefits received by its Freedmen members, and previous or current efforts on the part of those Indian Tribes to disenfranchise its Freedmen members.
After the Secretary has certified to Congress that the Creek Nation is in full compliance with all its treaty obligations and Congress approves the Secretary’s certification by a vote taken on a concurrent resolution certifying that the Creek Nation is in full compliance with its treaty obligations, the final certification of the Creek Nation’s treaty compliance shall take effect.
Suspension of right to conduct gaming operations
The Creek Nation’s authority to conduct gaming regulated under the Indian Gaming Regulatory Act and to administer any funds from such gaming are suspended until such time that the Creek Nation is in compliance with all treaty and other obligations with the United States by a final certification under section 2(d).
Not later than 30 days after the date of the enactment of this Act, the National Indian Gaming Commission shall submit a report to Congress detailing the actions that have been taken to enforce subsection (a).
If, after a certification under section 2(d), the Secretary certifies to Congress that the Creek Nation is not in full compliance with its treaty obligations or Federal statutes that govern its relations with the Federal Government, the provisions of section 2(a) through (c) shall apply until Congress recertifies full compliance under section 2(d).
Any Creek Freedmen shall have a private right to bring actions for injunctive relief, declaratory relief, or monetary damages against the Creek Nation of Oklahoma, officials of the Creek Nation of Oklahoma, or Federal officials for noncompliance with this Act or for violations of the terms of the Treaty of 1866, the 13th Amendment to the United States Constitution, or the Indian Civil Rights Act of 1968. The appropriate Federal courts shall have exclusive jurisdiction over actions brought under this subsection.
Department of Justice
Not later than 30 days after the date of the enactment of this Act, the Attorney General shall issue a finding on whether the Federal civil rights of the Creek Freedmen have been violated by the Creek Nation, the Department of the Interior, or both.
Private right of action
Any Freedmen may bring a private right of action in a court of competent jurisdiction to compel the Attorney General to investigate Federal civil rights violations and provide a determination of whether a violation has occurred within 180 days of submitting a complaint to a court describing the violation in writing.
GAO report on expenditure of Federal funds
On October 1 of each year, the Government Accountability Office shall issue a public report to Congress on the following:
For each of the 5 fiscal years ending immediately before the report, the Creek Nation’s expenditure of all Federal funds.
An analysis of Federal funds allocated by the Creek Nation’s leadership for its member benefits and services and for administrative and other purposes.
A determination of whether or not the Creek Nation is in full compliance with all Federal regulations and laws regarding the management and disbursement of Federal funds.
In this Act:
The term Creek Nation means the Muscogee (Creek) Nation of Oklahoma.
Creek Freedmen, Freedmen, and Black Creeks
The terms Creek Freedmen, Freedmen, and Black Creeks means individuals who can trace their ancestry to individuals listed on the 1906 Dawes Commission Rolls for the Creek Freedmen.
Other Freedman Indians
The term Other Freedmen Indians means individuals who can trace their ancestry to the 1906 Dawes Commission Rolls who are members of the Choctaw, Chickasaw, Muscogee (Creek), and Seminole Nations.
The term Secretary means the Secretary of the Interior.