IN THE MUSCOGEE (CREEK) NATION SUPREME COURT

IN THE MATTER OF THE CONSTITUTIONALITY OF NCA 24-077

Case No.: SC-2024-05

(District Court Case No.: CV-2024-122

A legal challenge in which original jurisdiction was assumed by the Muscogee (Creek) Nation Supreme Court on September 5, 2024, to consider the constitutionality of NCA 24-077, a law enacted on June 10, 2024, amending M(C)NCA Title 27, § 3-103 (concerning the number of Justices hearing an appeal), and repealing M(C)NCA Title 27, Appendix 1, Rule 15A (concerning vacancies in the District Court and Supreme Court).

ORDER AND OPINION

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Before: ADAMS, C.J.; LERBLANCE, V.C.J.; DEER, HARJO-WARE, MCNAC, SUPERNAW, THOMPSON, JJ.

PERCURIAM

 

Order finding NCA 24-077 unconstitutional.

 

Per Curiam

BACKGROUND

On September 29, 2023, an appeal was filed by the Citizenship Board of the Muscogee (Creek) Nation, challenging a September 27, 2023, Order of the Muscogee (Creek) Nation District Court. The case was docketed by the Supreme Court on October 2, 2024, as Citizenship Board of the Muscogee (Creek) Nation v. Rhonda K. Grayson and Jeffery D. Kennedy, and assigned case number SC-2023-10. That same day, an Order of Recusal was filed by Justice Leah Harjo-Ware, pursuant to M(C)NCA Title 26, § 4-101, 4-102, and 4-103 (as amended by NCA 12-033).

On April 12, 2024, following the conclusion of briefing by the parties in SC-2023-10, the Supreme Court issued its Order setting the case for oral argument. Prior to the oral argument date, on May 8, 2024, the Respondents filed a Motion to Request Judicial Recusal, requesting that Justice Amos McNac consider recusing from the case due to his previous works in developing the 1979 Muscogee (Creek) Nation Constitution and personal involvement in the Harjo v. Kleppe federal civil action (interpretations of which are disputed by the parties in SC-2023-10). This Motion was granted via a subsequent Order of Recusal filed by Justice McNac on May 10, 2024.

On June 10, 2024, one month prior to the oral argument scheduled in SC-2023-10, the Muscogee (Creek) Nation National Council scheduled an emergency session, in part, to consider NCA 24-077, a law amending M(C)NCA Title 27, § 3-103, to require that a full complement of seven (7) Justices hear all appeals, and establishing procedures for the appointment of a Special Justice in the event a constitutionally seated Justice is unable to hear any specific case. NCA 24-077 further repealed M(C)NCA Title 27, App. 1, Rule 15A, which previously required the joint agreement of the Principal Chief of the Muscogee (Creek) Nation, Speaker of the National Council, and Chief Justice of the Supreme Court before the appointment of a temporary Judge or Justice could take place. Finally, the same emergency session also considered TR 24-073 and TR 24-074, appointing James Jennings and Samuel Deere as Special Justices in SC-2023-10, to fill the two openings created by the recusals of Justices Harjo-Ware and McNac. All three (3) legislative acts were passed by the National Council on June 10, 2024, and signed into law by Principal Chief David W. Hill that same day.2

The Petitioners in this action (the Respondents in case number SC-2023-10) filed their Application to Assume Original Jurisdiction and Petition for Declaratory Relief on July 8, 2024, arguing that NCA 24-077 conflicts with the plain text of the Muscogee (Creek) Nation Constitution, and violates the separation of powers between the Nation's three branches of government, and as such, should be found unconstitutional, and that, as a result, TR 24-073 and TR 24-074 should be found void and unenforceable. The Petitioners named the Muscogee (Creek) Nation National Council as the respondent in the case. On August 16, 2024, via an Order on Motion to Intervene, this Court authorized the Muscogee (Creek) Nation Executive Branch (through Principal Chief David W. Hill) to participate as an intervening party. Briefs have been submitted by all authorized parties, and oral argument was conducted on February 21, 2025, in which all authorized parties participated and presented their arguments before the Court.

 

ISSUES PRESENTED

1. May the Muscogee (Creek) Nation National Council enact legislation setting the number of Supreme Court Justices that must be present to hear any appeal filed with the Muscogee (Creek) Nation Supreme Court?
2. May the Muscogee (Creek) Nation National Council enact legislation establishing a procedure for the appointment of a "Special Justice" to the Muscogee (Creek) Nation Supreme Court, in the event a constitutionally confirmed Justices recuses from a case?

DISCUSSION

 

I. Legislation Requiring Seven Justices to Hear Appeals

"When there is a question as to whether the Muscogee (Creek) Nation Constitution has been followed in legislative or executive actions, this Court has jurisdiction to interpret those actions in the [sic] light of the Nation's Constitution."3 "[T]he Constitution must be strictly interpreted and where the Constitution speaks in plain language with reference to a particular matter, this Court must not place a different meaning on the words."4 "In the absence of a constitutional amendment, the clear meaning of the text of the Constitution stands as the law of the Muscogee (Creek) Nation. Any act, law, order, or resolution that is in conflict with the Constitution is unconstitutional, regardless of whether it was passed by the National Council or has devolved through traditional use."5 "Under general legal principals, if the Council has not acted within the framework of the Constitution, it has not acted."6

Pursuant to the caselaw cited above, it is the duty of this Court to review NCA 24-077 and determine if this legislation is consistent with the clear meaning of the Constitution. To begin this analysis, the Court turns to the specific duties assigned to the Legislative Branch and the Judicial Branch, respectively, under the Constitution.

Article VI, Section 7 of the Muscogee (Creek) Nation Constitution provides the following with respect to the legislative power of the National Council:

Section 7. The National Council shall have the power (subject to any restrictions contained in the Constitution and the laws of the United States of America) to legislate on matters subject to limitations imposed by this Constitution as follows:

(a) To promote the public health and safety, education and welfare that may contribute to social, physical well-being and economic advancement of citizens of the Muscogee (Creek) Nation.

(b) To negotiate with Federal, State, and local governments and others.

(c) To manage, lease, prevent the sale of, dispose or otherwise deal with tribal lands, communal resources or other interest belonging to The Muscogee (Creek) Nation or reserved for the benefit of such Nation.

(d) To authorize and make appropriations from available funds for tribal purposes. All expenditures of tribal funds shall be a matter of public record open to all the citizens of the Muscogee (Creek) Nation at all reasonable times.

(e) To enter contracts on behalf of the Nation with any legal activity that will further the well-being of the members of the Muscogee (Creek) Nation.

(f) To employ legal counsel.

(g) To borrow money on the credit of the Muscogee (Creek) Nation and pledge or assign chattels of future tribal income as security therefore.

(h) To lay and collect taxes within the boundary of the Muscogee (Creek) Nation's jurisdiction from whatever source derived.

(i) To create authorities with attendant powers to achieve objectives allowed within the scope of the Constitution.

(j) To exercise any power not specifically set forth in this Article which at some future date be exercised by the Muscogee (Creek) Nation.

Of these specific Constitutional powers assigned to the Legislative Branch, none describe a duty to set the processes and/or procedures of the Judicial Branch, in fact, the only potentially relevant provision is found at Article VI, Section 7(J), which acts as a catch-all provision for any legislative power not specifically contemplated within the language of Article VI. However, as stated in the opening sentence to Article VI, Section 7, all legislative powers are subject to the limitations of other Constitutional provisions. As such, the Court must also review the Constitutional duties of the Judicial Branch.

Article VII of the Muscogee (Creek) Nation Constitution provides the following with respect to the powers of the Judicial Branch of government:

Section 1. The judicial power of the Muscogee (Creek) Nation shall be vested in one Supreme Court limited to matters of the Muscogee (Creek) Nation's jurisdiction and in such inferior courts as the National Council may from time to time ordain.

Section 2. The Supreme Court shall be composed of seven (7) members appointed by the Principal Chief, subject to majority approval by the Muscogee (Creek) Nation National Council, and whose terms shall be for six (6) years beginning July 1. No person shall be appointed as a Supreme Court Justice who has a felony conviction in a court of competent jurisdiction.

Section 3. The Supreme Court shall, with the approval of the Muscogee (Creek) National Council establish procedures to insure that the appellant receives due process of law and prompt and speedy relief.

Section 4. The Supreme Court shall be presided over by a Supreme Court Justice chosen from their own number and shall be in regular, quarterly scheduled session, coinciding with that of the fiscal year.

Section 5. The decision of the Supreme Court shall be in writing and shall be final.

Section 6. All litigation between tribal officers shall originate in the District Court of the Muscogee (Creek) Nation, with the right of appeal to the Supreme Court. All questions of fact shall be determined by jury trial.

Article VII, Section 1, vests the "judicial power" of the Muscogee (Creek) Nation with the Supreme Court, and such inferior courts as the National Council may ordain. Article VII, Section 2, outlines the process for appointment and confirmation of a Justice to the Supreme Court and sets the total number of Justices at seven (7). Finally, Article VII, Section 3, assigns the Supreme Court the duty to "establish procedures to insure...due process of law and prompt and speedy relief" in the Courts of the Muscogee (Creek) Nation. While Article VII does authorize some involvement by the Legislative Branch in Judicial Branch functions (i.e. confirmation of judicial nominees for open seats on the Supreme Court (Article VII, Section 2), implementation of "inferior courts" within the Muscogee (Creek) Nation (Article VII, Section 1), and approval of the procedures established by the Supreme Court (Article VII, Section 3)), The "judicial power" of the Nation, and the duty to establish procedures ensuring due process of law and prompt and speedy relief rests entirely with the Supreme Court.

This Court has previously stated "that fundamentally the Creek Nation Constitution intended to incorporate into it the basic parts of the separation of powers between the three branches of government. Because this is the case...each branch of this government has special limitations placed on it. This is called the system of Checks and Balances."7 Further, that to give "unbridled authority" to a specific branch of government at the expense of the others "would be a crime against this Great Nation."8 9 In the past, this Court has exercised constitutional restraint concerning matters it felt bordered on violating this Nation's inherent separation of powers at the expense of the Judicial Branch of government. This Court has stayed its hand for many reasons; primarily due to justiciability concerns, and the lack of an active case or controversy presented on appeal or through the Court's assumption of original jurisdiction concerning the suspect matters. However, those concerns are not present in the instant case, and the Court is not inclined to exercise similar restraint at the expense of its constitutional authority.

The Constitution is clear: the judicial power of the Nation rests with the Supreme Court.10 The Legislative Branch is given a small, yet significant check on the Judicial Branch's authority though its ability to confirm nominees for open Justice seats, to create inferior courts (as needed), and to approve the procedures issued by the Supreme Court. That is the extent of the Legislative Branch's reach into Judicial Branch matters pursuant to the Constitution. The Constitution requires a seven (7) member Court, but is silent as to the number of Justices that must hear any specific case. For over forty years this Court has elected to operate in a manner similar to other traditional high courts,11 and consistent with this Nation's Judicial Code of Ethics 12 and case law precedent 13 concerning recusal, wherein Justices are allowed (and in some cases encouraged) to recuse when they determine justice so-requires. A judicial vacancy may also occur when a Justice's term has expired and a successor has not yet been confirmed. In these instances, the remaining Justices continue the business of the court in the recused or term limited Justice's absence. Many times, a full complement of seven (7) Justices will hear a case. However, there are occasions in which the total number of Justices assigned to a given matter is less than seven (7). This system has been more than effective, and has created forty years of sound Mvskoke legal precedent. The Respondents argue that a ruling with fewer than seven (7) seated Justices opens the Nation up to Federal and/or State scrutiny. However, this Court finds this to be standard practice in high courts throughout the United States, 14 15 including in tribal Nations.16 Further, the Court finds this practice to be no more concerning than a law or resolution being passed by the National Council absent a full complement of lawmakers present. On this point, Article VII, Section 5 is the lodestar; a decision issued by this Court is final.

In SC-2010-01, this Court reviewed a similar challenge concerning the number of Justices required to sit on an appeal and issue a valid decision. In that action the Court was tasked with interpreting two conflicting statutes: M(C)NCA Title 27, § 3-101 (NCA 99-85), which required a minimum of four (4) justices be in agreement on any decision, and M(C)NCA Title 27, § 3-103 (NCA 82-30), which required at least four (4) justices sit on each case. The Court applied its "canon of constitutional avoidance" in order to save the two statutes from "constitutional problems[.]"17 It ultimately found that the only way to save these two statutes was first, to read §3-101 as applying "[a]n inherent presumption" that a full complement of Justices were sitting on the case in question, while also reading § 3-103 as a simple quorum rule. Therefore, under the Court's interpretation, "four justices may deliver a decision if six justices participate [and] [i]f only four or five justices participate, then three may render a decision."18 Essentially, confirming what the Court has done throughout its history, which is to issue a decision with a simple majority of those Justices present. Four months after the Court issued this decision, on September 21, 2013, the Nation passed an amendment to the Muscogee (Creek) Nation Constitution, amending Article VII, Section 2, to increase the total number of Supreme Court Justices from six (6) members to seven (7) members, in the hopes that an additional Justice (creating an odd number on the Court) would decrease the possibility of a tie vote as well as increase the total number of Justices able to hear appeals. However, a new seventh Justice was not officially seated until over three (3) years later, on June 17, 2017. Since that time, thirty-nine (39) cases have been filed with the Supreme Court (not including election disputes or impeachment matters). Of these thirty-nine (39) cases, thirty (30) have been resolved with a full complement of seven (7) Justices, six (6) have been resolved with six (6) Justices, and three (3) have been resolved with five (5) justices, and all but one of these decisions were issued unanimously or with concurring opinions (only one (1) case since 2017 has included a dissenting opinion).

The Constitution is clear, and this Court has been clear. The judicial power of the Nation rests with the Supreme Court. The Constitution provides the Legislative Branch with a check on the Judicial Branch's power through the confirmation process of Justice nominees, through the creation of inferior courts, and through its approval of Supreme Court procedures. Outside of these limited areas, the Legislative Branch cannot pass law effecting the Judicial Branch of government. NCA 24-077 requires all seven (7) Justices hear every appeal filed with the Court. This conflicts with this Court's established precedent, and oversteps the Legislative Branch's constitutional authority. For these reasons, the Court finds the NCA 24-077 unconstitutionally void and unenforceable.

II. Legislation Establishing Procedures for the Appointment of a Special Justice

In addition to requiring a full complement of Justices to hear all cases presented to the Supreme Court, NCA 24-077 establishes procedures for the appointment of Special Justices, in the event one or more constitutionally seated Justices must recuse from a properly filed case. These procedures require the Court to immediately notify the Principal Chief of the recusal. Thereafter, the Principal Chief has thirty (30) days to nominate a Special Justice to fill the recused Justice's seat on that specific case. The Special Justice nominee must then be confirmed by the National Council. If the process takes longer than ninety (90) days, then the Court may continue the case with fewer than seven (7) Justices. To begin, the Court finds it necessary to briefly reiterate the concerns it expressed with this process in its February 21, 2025 oral argument. Unlike the nomination and confirmation process for an Article VII Justice (where the confirmed Justice will serve a six-year term, with the option (absent recusal) to hear all cases that are filed with the Court), the nomination of a Special Justice is for a singular case. This places an inordinate amount of power and influence with the Legislative and Executive branches of government, where the circumstances are ripe for a Special Justice to be selected based entirely on a desired outcome for the specific case. Even if the motivations of the Legislative and Executive branches of government are well-meaning, the decision by the other branches to meddle with the Nation's past precedent creates an appearance of impropriety. This Court has a duty to protect the integrity of the Nation's judicial system. This Court has previously explained that "[i]t is the responsibility of the Judge in all cases to determine, himself, using his best judgment, if his decisions will be perceived as unfair requiring recusal."19 Further, that "[i]n deciding whether a decision will be perceived as unfair, a judicial officer should consider the case from both a subjective standpoint (assessing whether the judicial officer considers himself or herself to be impartial) and an objective standpoint (asking whether the public would reasonably consider the judicial officer to be impartial)."20 In this instance, the Court views the following circumstances as objectively problematic: (1) the Executive and Legislative branches of government are involved as parties in SC-2023-10 and are solely responsible under NCA 24-077 for selecting the Special Justices to hear their case; (2) the Legislative and Executive branches of government argued in briefing and during oral argument that a quorum issue has existed since this Court's decision in Ellis, SC-2010-01 (a decision issued on May 2, 2013), yet nothing was done to address this "problem" until the eve of oral argument in SC-2023-10 (in June of 2024, over ten years later), passing NCA 24-077 via an emergency session shortly before oral argument; finally, (3) both NCA 24-077 and the tribal resolutions nominating and confirming the Special Justices were all passed and signed on the same day, further evidencing that SC-2023-10 was the specific target of NCA 24-077, as opposed to a general desire to address concerns arguably created by the Ellis decision. Due in large part to these circumstances, there is a great public perception that NCA 24-077 and the tribal resolutions appointing the two (2) Special Justices were enacted to produce a desired result, whether or not that perception is correct. In reality, this perception would be the case in any matter (present or in the future) in which the Legislative or Executive branch is a party to the action before this Court. It defies reality to believe opposing parties, the public, or foreign jurisdictions would not suspect wrongdoing when a party in an appellate matter is given the ability to unilaterally select the judicial officer hearing their case. Under this Court's caselaw precedent (mentioned above), such a perception would be enough to justify recusal of the newly appointed Special Justice from the outset, creating an endless loop in which every Special Justice appointee would be expected to recuse as soon as they assumed the case.

Next, the Court has expressed concern with the retroactive nature of NCA 24-077 on SC-2023-10. A common practice, both in legislative actions and in Court rules of procedure, is to ensure that a new law/rule is only applicable to situations/cases occurring after the date the ordinance has been issued. In fact, the National Council (in exercising its constitutional "check" over the Supreme Court's rules of procedure) specifically prohibits the Supreme Court from applying its rules of procedure in an ex post facto manner, stating that "[r]ules may be amended or rescinded by the Supreme Court at any time except that rules in effect at the time of filing of a matter in the original hearing body shall govern that matter until final resolution by the Supreme Court."21 [Emphasis Added] The intent of this language is to assure citizens and/or litigants that new rules are not being established to tip the scales of justice in one way or the other. NCA 24-077 is not forward looking. It encompasses all cases, new and old. This adds to the perception that the parties to SC-2023-10 may not be receiving even-handed treatment.

Finally, the Court has expressed its concern that NCA 24-077 specifically applies to writ of habeas corpus actions. Under the Court's appellate rules of procedure, an appellant seeking a writ of habeas corpus is guaranteed to have their action set for hearing within seventy-two (72) hours of filing, with (at least) a three (3) Justice panel. NCA 24-077 upends this appellate rule, requiring a full complement of seven (7) Justices hear the writ, and giving the Executive and Legislative branches up to ninety (90) days to finalize their selection for any recused Justices' seat. Writs of habeas corpus are particularly important actions, as no man or woman should be unjustifiably detained by the Nation. To require an Appellant in a writ action to wait up to ninety (90) days in jail while the Nation scrambles to fill recuses Justices' seats is simply unacceptable.

While the Court has these concerns, it also does not agree with the position of the Appellants that a Special Justice can never be utilized by the judicial branch without violating the Constitution. As this Court expressed during oral argument, (while unlikely) it is easy to envision a scenario in which all (or very near all) seated Justices must recuse from a specific action. If this were to occur, it is unreasonable to expect the case to sit in perpetuity without resolution because the Nation had no recourse to temporarily assign help to the Court. In fact, a Special Justice has, on one (1) occasion, been utilized before. This was accomplished via an Order issued by the Supreme Court.22

Irrespective of these concerns, the Court's duty is again to "strictly [interpret the Constitution] and where the Constitution speaks in plain language with reference to a particular matter, [not] place a different meaning on the words."23 The Court's analysis in Part I, above, holds true with respect to a law issued by the National Council establishing procedures for the appointment of a Special Justice. The Constitution has specifically delegated the duty to establish judicial procedure affecting "due process of law and prompt and speedy relief" to the Supreme Court. It is clear that the need for a Special Justice would impact both a party's due process rights and the speed at which their case would be resolved. Under the Nation's Constitution, the Legislative Branch has no role in crafting such rules. As such, NCA 24-077 is an unconstitutional usurpation of the Judicial Branch's constitutional authority, and, therefore, is void and unenforceable.

The Court acknowledges that thirty (30) year-old caselaw precedent concerning the appointment of a Special Justice 24 is not easily accessible for the average Court litigant. As such, the Court has issued an updated version of its Appellate Rules of Procedure (pursuant to Article VII, Section 3, and M(C)NCA Title 27, § 3-108) concurrently with the filing of this Order and Opinion, incorporating its procedure for the appointment of a Special Justice going forward.25

CONCLUSION

For the reasons stated above, the Court finds NCA 24-077 unconstitutional and unenforceable. Further, as a result of this finding, the Court finds TR 24-073 (appointment of James Jennings) and TR 24-074 (appointment of Samuel Deere) unconstitutional and unenforceable. Finally, the Court finds that the appointment of a Special Justice pursuant to NCA 24-077 in any other pending Supreme Court action is likewise unconstitutional and unenforceable, and that, with the issuance of this Order and Opinion, any Stay of Proceedings filed in any other Supreme Court action for the purpose of resolving the Constitutional challenge related to NCA 24-077 is hereby removed.

 

FILED AND ENTERED: April 22, 2025

/s/ Andrew Adams, III
Andrew Adams, III
Chief Justice
 
/s/ Richard Lerblance
Richard Lerblance
Vice-Chief Justice
 
/s/ Montie Deer
Montie Deer
Associate Justice
 
/s/ Leah Harjo-Ware
Leah Harjo-Ware
Associate Justice
 
/s/ Amos McNac
Amos McNac
Associate Justice
 
/s/ Kathleen R. Supernaw
Kathleen Supernaw
Associate Justice
 
/s/ George Thompson, Jr.
George Thompson, Jr.
Associate Justice