OKMULGEE, Okla. – The Muscogee Creek Nation Supreme Court has issued an order and opinion in SC 2024-05: In the Matter of the Constitutionality of NCA 24-077. The high court has found NCA 24-077 unconstitutional. According to the decision:
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 VI 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 “it 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.” Further, that “in 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).” 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 case law 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.
The Court also addressed habeas corpus concerns discussed in oral arguments, as follows:
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.
The decision in SC 2024-05 now removes the stay in SC-2023-10, Citizenship board of the Muscogee (Creek) Nation v. Rhonda K. Grayson. The MCN SC has not issued an order scheduling oral arguments in this case at the time of the publication of this article.
Mvskoke Media will have ongoing coverage of this developing story.
