By Rob Trepp
Edited by Staff Editor
A constitution does not need to be a written document, although in practice that is usually the case.
Before 1540, there were alliances between the Towns, or Etvlwvs, and all local government issues were handled solely within the political confines of those Towns. Principal Towns handled those alliances and the Town leaders were looked to for advice on those matters.
Sharing similar traditions, religious practices, cultural traits and languages, most relations between Towns were peaceful. Disputes between Towns were few. When there were disputes, they were settled by the ‘younger brother of war’ or ‘little brother of war’, a match of stickball.
Many councils formed a single confederacy after deSoto’s invasion in 1540. Towns or Etvlwvs had particular roles in Council regarding trade or sending men into battle. Even though those agreements were never written down, they were known by all and formed a constitution. And as nearby European colonies grew and some of those practices were changed by the Towns; the changes could be viewed as amendments to an unwritten constitution.
For example, Creek delegations sent by the Council to Charleston or Savannah would often reflect a change in members from fall to spring, or the rank of those delegates might be modified. The decisions to make those adjustments were made by agreement in Council.
The Town King, or Mekko (called Chiefs by the British), were usually picked to be delegates. The ranking system assigned to delegates by Council (first, second, third, etc.) would eventually lead to a shift of having a Principal Chief, chosen by the Council (just like any parliamentary government chooses or dismisses a Prime Minister today).
Another example is when the Town Kings, leading veterans of war and the hunt (warriors) or Tustenuggee, and other respected men and even some highly respected women would all gather in Council.
But the British agent’s interference was persistent in trying to separate the kings (Mekko) and warriors (Tustenuggee) into different meetings. Some years, the Council would agree to that, but some years it would not. The Americans wanted that same division but were most interested in finding one individual leader who, alone, who would speak for a Nation of thousands.
An third example is that laws would be put into writing. This helped resolve disputes with colonists that did not trust our leaders to recite or translate tribal laws accurately. Our first written law was that killing another is murder, unless it happens during a stickball match because, then, that game killed him.
As Removal began, we had distinct governments in the east and west. At the 1840 gathering of 1500 leaders at Council Hill, the Creek confederacy agreed upon a new but still unwritten constitution establishing Councils and Principal and Second Chiefs for the Arkansas and Verdigris valleys and the Canadian valleys. The new form of governing put each town on a more equal basis with the others in Council. The Chiefs were chosen by the Councils. Except for federal relations, all government issues were left to the decisions of each town and its council.
The devastation from the U.S. Civil War compounded by the seemingly irrevocable division of Muscogee people throughout that war and the loss of half our tribal lands because of that war, all brought tribal leaders to a decision to try to strengthen and unify the confederacy.
The 120 towns that had survived Removal had been cut in half or more due to the incredible loss of life. The loss of half our promised treaty lands, plus what had been learned by those who served in the two American armies, led to the Council that formed and wrote down our 1867 Constitution.
The major changes in 1867 consisted of implementing one National Council, one Principal Chief, and one Second Chief. The Chiefs were to be elected by votes taken and recorded in each town. Each town was represented in the House of Kings either by their Town King or someone elected to perform that duty, and each town (according to population) elected one or more delegates to the House of Warriors.
An independent judiciary was established based upon geographic districts, and the district voters chose the District Judge and Lighthorse. The new courts were only for tribal law, the towns still controlled local law enforcement but now had a national system to help enforce their laws when necessary. A permanent national capitol was established.
Free blacks had long been recognized as members of Etvlwv (Towns) if they had married into or had long settled among a Town. In addition, three new towns were established for freed slaves, with rich and productive lands from some of the most notorious slave traders, designated as the locations for them to establish communities.
The black population’s full recognition as tribal citizens came about not only because of the 1866 treaty with the United States but also at the insistence of the Loyal Creeks who had fought shoulder-to-shoulder with black soldiers in battle under a unified command at Round Mountain, Caving Banks, and Chustenalah in 1861. The Loyal Creeks and black soldiers also shared their suffering in federal camps in Kansas during the war.
The Cherokee, Choctaw and Chickasaw had also signed similar treaties with only the Seminole honoring their word.
It was this bulwark of layers of popular government (national, district, and town) that faced the United States government when it wanted to ignore those treaties and open our lands to settlement. So, they destroyed it.
The National Council would not agree to allotment and the Towns had no power to agree. Congress closed Muscogee courts and schools, threatened to terminate all recognition of the tribal government, and insisted on a referendum of the voters to decide the issue. Three towns actually refused to vote at all, saying they had no authority to violate a treaty.
The allotment actually divided Town communities by deeding parts of those communities to individuals, tearing the towns apart. Questions of heirship soon divided those communities even more. It is important to note that these same actions were not carried out on the Osages just north of the Creeks.
Narrowly, allotment was approved, but the federal pressure did not end there. Instead of accepting the Town rolls created from payments made to citizens in 1890 and 1895, a federal roll was set up in their place. Federal officials determined who was or was not a citizen and created a separate Freedman roll for the first time.
The Freedmen Rolls included not only descendants of former slaves but also the descendants of free blacks who had been citizens of other Towns and Muscogee children of those former slaves and free blacks. The social and political integration that had been achieved by the Muscogee and Seminole was undone by American segregationists.
Next, the mid-term death of Principal Chief Pleasant Porter was exploited by the Interior Department. Second Chief Motey Tiger had already been sworn into office and had taken over the duties of Principal Chief when a telegram arrived saying that President Theodore Roosevelt had “appointed” him to that office (falsely based on a federal law saying that if a Chief refused to sign allotment deeds that the U.S. President could appoint someone to that office to sign those deeds prepared by the Dawes Commission), and the Bureau of Indian Affairs began disapproving expenditures of tribal funds approved by the National Council, including funds for our 1907 elections.
This too was a misinterpretation of federal law, as the 1906 Act had said that tribal government was continued, and the BIA said that meant only that persons in tribal office were still in those offices and no election was required. A much better explanation of this is toward the end of the decision in Harjo v. Kleppe, 420 F. Supp. 1110.
Fast forward several decades without a recognized Creek government.
With judgment funds from land claims becoming available in the 1970s, Congress found out that the Five Tribes had no elected officials and passed a law allowing the selection of principal officers by each tribe. Gradually, this inspired some tribal citizens to want a new constitution. An advisory council was appointed by the elected Principal Chief, Claude Cox, to set up a Constitution Committee to begin that work.
The Constitution Committee’s proposal (which extended the right to vote to our women) was submitted to the advisory Council, which at the request of the Chief, changed two legislative bodies into a single one by striking out a house with representatives from each tribal town (by blood) and struck out the Second Chief.
Arguably, what was left was a representative democracy, a Principal Chief with only as much power as the Nation’s laws allowed, and an independent judicial branch.
A lawsuit was filed to force recognition of the 1867 Constitution, and the Harjo case began. The federal judge in Washington, D.C., ruled that the new draft should be put on ballot but not before the people had a chance to discuss, debate, and ultimately vote on three significant changes:
- Whether there should be a Second Chief;
- Whether the National Council should have one house or two;
- And whether representation should be by district or by tribal town (by blood).
Copies of the draft circulated in Mvskoke and English and hearings were held in many communities so everyone could participate if they wanted. Both sides of the Harjo suit worked together to register and certify voters long before tribal enrollment cards could be issued.
The voters chose a Second Chief, a single house for the National Council, and narrowly voted in representation by Districts.
Before we could vote, the government raised objections to the pending draft. They wanted us to limit our jurisdiction to tribal and restricted lands, they denied we had any power to tax, they objected to our having any courts – on all these questions our commissioners were united, unanimous, and firm against their interference.
Narrowly, the 1979 Constitution was ratified, and the first full election of officers and representatives since 1903 took place. With some changes, this is the Constitution we share as a Nation today.
About the Author
Robert Trepp (Escaswvlke, Loca’pokv) is a life-long resident of the Muscogee Nation, diploma from Nathan Hale in Tulsa, BA and MA in Political Science from University of Arkansas (Fayetteville), consultant to 1975 Election Board (first election of Principal Chief and Second Chief since 1903), manpower planner, research specialist, research manager, Director of Government Policy and Research, clerk for Muscogee National Council, member of 1979 Constitution Commission, member of first Gaming Operations Authority board, Chief of Staff and Acting Director of Community Services for Principal Chief Bill S. Fife.
Successful tribal projects included Citizenship Code, Title I of Judicial Code, research that led to Muscogee Nation v. Hodel (first re-recognition of any Five Tribes courts), seven years lobbying to open Commodity Distribution to Oklahoma tribes, Gaming Code (first in Oklahoma), and multi-million dollar Housing Rehabilitation grant. Trepp testified to the Senate Select Committee on Indian Affairs on complex issues regarding the protection of native sites in the southeast.
Trepp is Vice President – Sales for Prescor LLC in Sapulpa, and CEO of the National Indian Monument and Institute, which just completed its 30th Tulsa Indian Arts Festival.