Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Ac Rpet Under the Law) Sarah Deer Mitchell Hamline School of Law, [email protected]

Mitchell Hamline School of Law Mitchell Hamline Open Access Faculty Scholarship 2013 Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The aC rpet Under The Law) Sarah Deer Mitchell Hamline School of Law, [email protected] Cecilia Knapp [email protected] Publication Information 49 Tulsa Law Review 123 (2013) Repository Citation Deer, Sarah and Knapp, Cecilia, "Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The aC rpet Under The Law)" (2013). Faculty Scholarship. Paper 257. http://open.mitchellhamline.edu/facsch/257 This Article is brought to you for free and open access by Mitchell Hamline Open Access. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The aC rpet Under The Law) Abstract In 1974, a group of Mvskoke citizens from Oklahoma sued the federal government in federal court. Hanging in the balance was the future of Mvskoke self-determination. The lp aintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The nitU ed States argued that the constitution had been nullified by federal law passed in the early 1900s. To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. It would also have to find that a tribal government had been operating legitimately in the shadows—that the Mvskoke people had continued to operate under their constitution for most of the twentieth century despite official federal antagonism. It was definitely a long shot, but they won. This article explores factors that have helped the Mvskoke people create, nurture, and sustain a constitutional government under hostile circumstances for centuries. We focus on the history and structure of the constitutional government of the Muscogee (Creek) Nation of Oklahoma. We consider several aspects of Creek conceptions of government structure and balance, which are also evidenced in the constitutional jurisprudence of the Muscogee (Creek) Nation Supreme Court. At first glance, the contemporary Mvskoke government today bears little er semblance to the ancient etvlwv town-based system of governance, but a more penetrating analysis reveals common threads of political theory and cosmogony, or world view, that have continued unabated. Keywords Indian Law, Muscogee, Mvskoke, Constitution, tribal law, tribal government, civil rights Disciplines Civil Rights and Discrimination | Constitutional Law | Indian and Aboriginal Law This article is available at Mitchell Hamline Open Access: http://open.mitchellhamline.edu/facsch/257 MUSCOGEE CONSTITUTIONAL JURISPRUDENCE: VHAKV EM PVTAKV1 (THE CARPET UNDER THE LAW) Sarah Deer * and Cecilia Knapp ** PART I. INTRODUCTION In 1974, a group of Mvskoke2 citizens from Oklahoma sued the federal government in federal court.3 Hanging in the balance was the future of Mvskoke self- determination. The plaintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The United States argued that the constitution had been nullified by federal law passed in the early 1900s.4 To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. It would also have to find that a tribal government had been operating legitimately in the shadows—that the Mvskoke people had continued to operate un- 1. Vhakv em pvtakv is the Mvskoke phrase most often used to describe the written constitution. See infra note 20 and accompanying text. * Associate Professor, William Mitchell College of Law. J.D., University of Kansas, 1999. Mvto (thank you) to Rosemary McCombs Maxey, Ted Isham, Marcus Briggs-Cloud, Colette Routel, Rachel Kowarski, Doug Heidenreich, Patrick Moore, Melissa Tatum, Frank Pommersheim, Mike Steenson, David Prince, Ra- leigh Levine, Niels Schaumann, Anna Light, Bethany Berger and Cal Bonde. While this co-author is a citizen of the Muscogee (Creek) Nation, the opinions expressed in this article are her own and do not necessarily re- flect the views of the Nation or any of its officers or employers. ** J.D., 2013, William Mitchell College of Law. 2. “Creek,” “Muscogee,” and “Mvskoke” will be used interchangeably throughout this paper to refer to the same nation of people. Mvskoke (pronounced muhs-GO-ghee) is the traditional word used to describe the largest cultural group in the Creek Nation. There have been a variety of spellings of Mvskoke over the last two centuries, including Muscogee, Muskogee, Muskoke, Maskoki and Maskoke. E.g., JACK B. MARTIN & MARGARET MCKANE MAULDIN, A DICTIONARY OF CREEK/MUSKOGEE xiii (2000). Mvskoke is the preferred spelling for many modern scholars and linguists. The spelling originates from a version of the alphabet adopted by the Muscogee (Creek) Tribe in the late 1800s. PAMELA INNES ET AL., BEGINNING CREEK: MVSKOKE EMPONVKV 3 (2004). The official federally recognized name of the tribal government described in this article is Muscogee (Creek) Nation. However, some government offices are beginning to embrace the Mvskoke no- menclature in various significant publications (including the Supreme Court’s commissioned reporter). This return to early spelling is typical of tribal nations engaged in cultural and linguistic revitalization. The word “Creek” originated with the term the English used to identify the “Muskhogean group with whom they were first in contact, the Indians who lived on or near the upper Ocmulgee, i.e., ‘Ochese on Creek.’” Verner W. Crane, The Origin of the Name of the Creek Indians, 5 MISS. VALLEY HIST. REV. 339, 342 (1918). 3. Harjo v. Kleppe, 420 F. Supp. 1110 (D.C. 1976). Harjo is a common Mvskoke surname (akin to the American “Smith” or “Jones”) and will appear frequently in this article. The name is sometimes translated into English as “crazy.” A more literal translation might be “recklessly brave.” 4. The United States argued that the Mvskoke right to self-government had been extinguished by federal statute during the “allotment” era of Federal Indian law, when the federal government decided to compart- mentalize tribal lands, distribute individual fee deeds to tribal members, and dissolve the tribal governments. Id. at 1118. 123 124 TULSA LAW REVIEW [Vol. 49:123 der their constitution for most of the twentieth century despite official federal antagonism. It was definitely a long shot, but they won. How did this tribal government continue to persevere and operate in spite of gen- erations of official anti-tribal policies? In resolving the existential dispute, the federal judge engaged the rich constitutional history of the Mvskoke people,5 which dates back at least 500 years. After reviewing this history, the court labeled the federal policies of the United States as “bureaucratic imperialism.”6 The court found that the “vigor and liveliness of Creek political life,”7 documented since the Revolutionary Era, had survived the destruction of the Creek National Council in the twentieth century, and continued uncowed in the decades since.8 The decision led to a resurgence of Mvskoke political identity and a new constitution in 1979. This article explores factors that have helped the Mvskoke people create, nurture, and sustain a constitutional government under hostile circumstances for centuries.9 We focus on the history and structure of the constitutional government of the Muscogee (Creek) Nation of Oklahoma.10 We consider several aspects of Creek conceptions of government structure and balance, which are also evidenced in the constitutional jurisprudence of the Muscogee (Creek) Nation Supreme Court. At first glance, the contemporary Mvskoke government today bears little resemblance to the ancient etvlwv town- based system of governance,11 but a more penetrating analysis reveals common threads of political theory and cosmogony, or world view, that have continued unabated. Despite the rapidly emerging field of tribal constitutional jurisprudence, there are very few in-depth studies of how tribal governments interpret their own constitutions and whether these interpretations have furthered the aim of tribal self-governance. Tribal constitutional jurisprudence is “a unique contribution to the history of ideas,” and an es- sential element in the continuing tribal struggle for self-determination.12 As explained by Mohawk scholar Taiaiake Alfred, “renewal of respect for traditional values is the only lasting solution to the political, economic, and social problems that beset our people.”13 This study does three things. It uncovers a distinctive constitutional tradition, chronicles the role of law in the history of a people who struggled and survived in the face of relent- less pressure to disappear, and helps to strengthen the foundation on which Mvskoke people are building their future. 5. Id. at 1118-42. 6. Id. at 1130. 7. Id. at 1138. 8. Harjo, 420 F. Supp. at 1138. 9. While we have researched the archival record of early Mvskoke law extensively, it is important to be sensitive to the potential for observer bias, especially when relying on non-Native descriptions of tribal life. 10. Muscogee (Creek) Nation is the official name of the federally recognized

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