A Hidden History: Exploring the Intersection of an Indigenous and African-American Legal Identity with Attorney Damario Solomon-Simmons

Damario Solomon-Simmons is a national civil rights attorney specializing in civil & human rights, racial justice, and wrongful death. Solomon-Simmons has been a practicing attorney for almost 17 years and is currently the Managing Partner of SolomonSimmonsLaw, an Oklahoma-based law firm.

In August 2018, Damario Solomon-Simmons filed a lawsuit against the Muscogee Creek nation and the interior department in Oklahoma to fully restore the citizenship of Black Muscogee (Creeks). Representing six plaintiffs, Solomon-Simmons fought to reinstate the citizenship of Black Creek Freedmen who lost their Creek citizenship after the establishment of a new tribal constitution in 1979. Solomon-Simmons led two Black descendants, Rhonda Grayson and Jeff Kennedy to a ruling in favor of the two, allowing them to apply for Black Creek Freedmen citizenship after being denied in the past.

The interview below was conducted in Fall 2023. It has been edited for clarity.

Harvard Undergraduate Law Review (HULR): Just to start off, I want to consider the recent lawsuit against the Muscogee Creek Nation and the Interior Department of Oklahoma to fully restore the citizenship of Black Muscogee. The debate over whether tribal citizenship should be granted to the descendants of enslaved Black people is hardly limited to the Oklahoma Muscogee. Can you begin by sort of contextualizing some of the history between Black and Native American people?

Attorney Damario Solomon-Simmons (DSS): Yeah, I think we first have to realize that there were what we would consider Black Native/Indigenous people in the Americas long before Columbus and those people that were lost got to the so-called “New World.” And so, when we start with that framework and understand that we've always been here, it makes it easier to understand, you know, where we are today. So, for instance: we talk about the five nations—the five tribes—of Oklahoma, which are the Creek, Cherokee, Seminole, Choctaw, and Chickasaw; there were always people with dark, Black, African skin among them. Then obviously, as we get up into the 16th, 17th, 18th centuries and these nations are being overrun by the Europeans, they started to try ways to resist. One of the ways they were resisting, or trying to survive was to adopt European-style plantation systems, which included using slave labor. So, they did start to enslave, you know those, from Africa—imported—and also enslave those of Black skin within their own ranks. And that's a history that people don't really understand.

And then, when those individuals, those nations, were finally defeated in their traditional homelands—or our traditional homelands, as I am Creek and of Seminole background and marched at the Trail of Tears in the 1830s from the Southeast United States to what's now known as Oklahoma (at the time called Indian Territory). 30 to 45 percent of the people on the Trail of Tears, you know, look like, what we consider today, of African descent. Many were enslaved, and many were free. And as those people got into Indian territory—or 35 years until the Civil War—the Confederate nations came to the five tribes and said, “Hey, if you side with us, we'll let you keep enslaving Black people.” That's why many of the tribal nations decided to do that. Of course, when that ended in 1865, the civil war ended and the United States forced Confederate states like Georgia, Alabama, Mississippi, et cetera to come back into the Union through adopting the 13th, 14th, and 15th amendments. The United States couldn't force the tribal nations to do that because they were not part of the United States; they were their own separate nations. That's why they had to have treaties. In the treaties, that's why they make specific provisions, like in the [Muscogee (Creek) Nation’s 1866 Treaty], which was signed by my four times great-grandfather Cal Tom. He's one of five individuals that signed it. It specifically talks about Creeks of African descent, now known as Freedmen. But that's not what we called ourselves then.

HULR: Thank you. Thank you. This is such an extensive—and as you said, hidden—history. Taking that into account, how did you even get started with the legal battle for Black Creek Freedman?

DSS: When I was growing up, my father was not in the home. And my Creek ancestry comes through my father. And I remember, you know, he’d come pick me up for visitation every once in a while, and he'd tell me all about our ancestor, Cal Tom, and how he was a chief of the nation, we did this, and this land—and I always thought he was lying to be honest with you. I thought he was trying to impress me. I never thought about it, never took it seriously—ever—until I got to the University of Oklahoma, where I was playing football. I, you know, started learning a little bit more and I met a woman who knew my father's family. So, she kind of was telling me a little bit about this information, and I was like, “What? Is this true?” I remember calling my grandmother, and she was like, “Yeah, this is all true.”

Then, I learned more about all my ancestors, and I learned about a book written about my family called [Staking a Claim: Jake Simmons and the Making of an African-American Oil Dynasty]. I read the book and everything I was told when I was a kid was true. And at that point, I started trying to get back re-enrolled with the [Creek] nation because I found out that we had been kicked out in 1979. I was denied like everybody else was denied. From that point, I was always kind of advocating about the issue. In law school, I was able to participate with an organization called [Descendants of Freedmen of the Five Civilized Tribes]. I hate that term, “civilized tribes,” but that's what it was called. I was able to participate with them and kind of help, you know, do some programming in law school, and give them whatever volunteering I could. And then, when I graduated from law school in 2004, there was this lawsuit by two Creek Freedmen who were representing themselves, pro se, meaning they didn't have a lawyer. They asked me if I would take on the case, and I said yes. I didn't know what I was doing. I was a brand new lawyer. I took on the case, and we actually litigated the case for three years. We ended up winning at the District Court level, but then their Supreme Court overturned us. So, that's how I got started. You know, it was a very personal and it is a very personal battle for me because I, myself, was a Creek citizen until I was kicked out when I was three years old.

HULR: In the process of pursuing this case, what did you find were the most fundamental laws or legal structures that form the foundation for Afro-Indigenous citizenship? In other words, what part of the law is most integral to how we understand this, this history, and this citizenship?

DSS: Article 2 of the [Muscogee (Creek) Nation’s] 1866 Treaty is the legal foundation for the Creek Nation's existence today. We have to also remember that we live in a White supremacist society, right? And, within that White supremacist society, we have to utilize the terms and the language of the society that we find ourselves in. So, when we talk about, for instance, the Creek nation and I say that the jurisdiction that allows them to exist legally is the Treaty of 1866, I always want to make it clear that I believe that we were here before the United States and therefore we have the inherent, sovereign right to be our nation regardless. Then, going back to the point that, “Hey, but I live in the United States where I have to go by the United States legal framework.” The legal framework that allows the Creek nation to exist and be recognized as a nation today is the Treaty of 1866. If there is no Treaty of 1866, then the Creek Nation does not have a legal right, within the United States confines, to be a nation. Are you following me?

HULR: Yes, yes.

DSS: So, because that Treaty is the is the fundamental baseline that allows the nation to be a nation—Article 2 of that Treaty, which specifically states that Creeks of African descent have [the same] full citizenship rights and benefits of any other Creek—and it is being violated and ignored by the Creek Nation, it stands for the proposition that if they cannot adhere to Article 2 of the Treaty, then the Creek Nation should not be able to legally exist because they are violating an essential article of the Treaty. Are you following me?

HULR: Yes. This is very, very interesting. So, considering this importance of language and terminology, how would you define tribal sovereignty?

DSS: Again, you know, we look at it from two standpoints. If I did not have to deal with the reality of the United States having, what's called, “plenary power” over the tribes. What that means is, under our Constitution, the United States Constitution, the tribes are what are called “dependent domestic nations.” The Congress has plenary power, which means they can do what they want to do with the tribes, with the Nations.

HULR: Right.

DSS: And so, it limits sovereignty to only those powers that Congress gives to the nations. That's why, again, when you think about the Treaty, the Treaty is what gives the nation the power to be sovereign today. If Congress wanted to, Congress could say, “We no longer recognize your nation, and it ceases to exist as a legal entity within the United States of America.” I, personally, believe that we have the right to inherit sovereignty. We were here before the United States, and we should be able to do what we want as a Nation, and we should be able to chart our own way forward. But, legally it has to be left to the consent of Congress. It's somewhat complex. I'm hoping I'm being clear enough for you, you know, and making some sense.

HULR: No, absolutely, thank you. Similarly, there has been discussion around African American descendants of enslaved people who also recognize this right to the land and this right to America—that sort of indigeneity. How does this concept of sovereignty and indigeneity differentiate between African American people (that are descendants of enslaved people) And Indigenous Americans?

DSS: Oh, that's a great question. The fundamental difference between Native American people and African Americans is that we have no sovereignty—African Americans--I would say. We have no “nation.” That’s the difficulty that we find ourselves in; we don't have a single entity that could speak for us in a single location of land, where we can say, “Hey, this is going to be African American land, or the Nation of African Americans.” Whereas the Creek Nation, or the Choctaw, or any of these Indigenous groups, have a land mass—regardless of how big it is—that they can say, “We own this. This is our sovereign territory,” even if they have to share that territory with other sovereigns, like here in Oklahoma. In the city of Tulsa, half of it is Creek Nation, half of it is Cherokee Nation. They have to share the land with the City of Tulsa, the State of Oklahoma. But, there are portions of the land within the Creek Nation’s legal boundaries that are Creek Nation lands—called “trust land”—and they control it. They are the government of it. They are the final authority, so to speak, on that trust land. It also gives them the ability to have their own police force, their own court system, their own judicial system, their own legislative system. They also have a way to make money now with other businesses. Some of these nations are making billions of dollars a year, so they can better take care of their people and be a player within the local, state, and federal government system, and they can hire lobbyists. They can hire the best lawyers and lobbyists to go to [Washington, D.C.] and fight on their behalf, or go to the state capitals. These are all things that as a unit, as a people—with a capital “P”—African Americans do not have.

HULR: This this concept of physical land is so interesting. There is a current “Land Back” movement where Black, Indigenous and Afro-Indigenous activists are kind of converging. This movement is a call for governments to return land to the descendants of the dispossessed. Are you familiar with this movement and if so, how can you envision a legal collaboration between Black and Indigenous identities in the future, if any?

DSS: I am familiar with the movement. I think the best way for collaboration to occur is that we must first understand that the main tenant of White supremacy is anti-Blackness. Everyone must understand that and acknowledge that, and understand that their anti-Blackness permeates throughout society, regardless of if someone is Native American, Asian American, African American, or White. So, acknowledging that and saying, “We will not stand for anti-Black discrimination wherever it occurs—if it occurs in the United States or the Indigenous Country,” and that would allow a greater collaboration. You can't collaborate with Native American nations if part of their criteria is that they're going to discriminate against people because of their “African ancestry.”

I think that's something that is very, very important for sharp, bright students like yourself, who are at these different universities and researching this to make that call. One, just because you’re Native doesn’t mean you can't have Black skin. Two, just because you have been identified by White society as having “African ancestry,” does not mean that you are not also Indigenous. And three, we will not tolerate anybody—Native or non-Native—utilizing someone’s African ancestry, and/or Black skin, as a basis to discriminate against them. We cannot be in a relationship like that. If you discriminate based upon Blackness, then we cannot have a relationship. We cannot collaborate, we cannot be friends. We must be unwavering that we do not tolerate anti-Black discrimination anywhere we see it, from anybody that does it. Does that make sense?

HULR: Yes, thank you so much. Obviously, race and ethnicity work so interestingly in America specifically. In an article by The Guardian, you explained that the Creek Nation is, “not a race, it's a political identity.” On a broader scale, how can members of other distinct political identities utilize the law as a form of protection—or can they even utilize it?

DSS: Well, it just depends if they can or not because, again, going back to what I told you about the Constitution, you know, the United States Constitution makes it very, very clear that Native Americans are a nationality. They are a political designation. This is the best way I always explain it: so, you’re from Saint Louis. I'm from Tulsa. But, we're both U.S. citizens. The guy next door who lives across the street from me—he’s a White guy—he’s a U.S. citizen. It doesn't matter about what our “race” is. Our nationality, our political designation is U.S. citizen. That was the same way for these nations because the nations have been so dominated by Europeans—and then, later on, United States society—it’s like we’re taking some of the powers the nations had from them. Anyone that they decide is a part of their nation is a part of it. It doesn’t have to be some type of base on, you know, phenotype, or they have to look a certain way.

When White people came here, no one called themselves the Muscogee Creek Nation, right? These were different people groups that would be in relationship with each other in the Confederacy, or just the same way that Missouri is in relationship to Oklahoma, is in relationship to Massachusetts, right? As these people started to get more and more oppressed, more and more killed off, more and more decimated, White society was able to kind of make them into this one little nation that's more easily controllable by the government. You push all these people together and you call them the Muscogee Creek Nation. And it wasn’t just the Muscogee Creek Nation; the Yuchi, the Yamassee, and many, many other peoples.

So, what I'm saying is, the political designations that we find ourselves in now, with these Nations, were created first in the Constitution, but they're ever evolving because the Constitution does specifically discuss Native Americans. But, as an African American, you know, we don't have that protection. The only protection that we had within the Constitution was when the 14th amendment came and said, “Hey, you gotta treat everybody the same based upon race.” Actually, it wasn't about treating everybody the same. It was about giving us equal protection under the law. You can't deny equal protection under the law because of race. Now, White Society is utilizing that exact same law to actually discriminate against us with the law that was written for us. But, they have the ability because of the way it was written. Whereas in the Constitution, it’s unambiguous that Native American people are a political designation, not a race.

So, for instance, if you were enrolled in a Native American nation, and you got your scholarship at Harvard, or they gave you special, preferential treatment, that couldn't be challenged the way they challenged race this summer. Right? So, it gives you so much more power to maneuver in this system by having a political designation that can be utilized and not be challenged, based on race. Am I making sense?

HULR: Yes, yes, it's such a complex issue.

DSS: It's a complex issue, but it's also an issue of finite resources, or let me say, tangible resources. The fact that I can trace My heritage—my Creek heritage—back to the late 1700s, I know who I am. So, saying I'm no longer a Creek and trying to take my heritage, that’s a big deal, but it's also a big deal that by taking my Creek citizenship, I don't have access to the free health care that I should have. I don't have access to the housing stipends that I should have. I don't have access to the college scholarships I should have. I don't have access to the job preferences that I should have. We're talking about millions of dollars each year that Black people, Black Native people, are missing out on. This is an issue of life and death. In Oklahoma alone—in Tulsa—Black life expectancy is 11 to 14 years less than White life expectancy. In Tulsa alone, you have over 10,000 Black families that should be enrolled in the Creek Nation. If they were involved in the Creek Nation and they had access to healthcare, you probably could cut that life expectancy disparity in half because the main issue of our people not living is not having proper access to healthcare. And I'm getting a little fired up now, but I hope I’m making sense.

HULR: No, it's OK. This is perfect.

DSS: I'm very excited that you and other people on the campus are looking at this issue. This is such an important issue. We really need, and want, more young people to get involved. This is a major issue and it impacts a couple 100,000 Black people—at a conservative estimate—so, we're not talking about something that is relegated to, you know, a few 100 people here in Oklahoma. These are Black Native Americans, who are all over this nation, who've been disenfranchised from who they are—and are being cut off from lifesaving, life-preserving, life-altering resources—all because of anti-Blackness.

HULR: My last question for you: with this continual effects of settler colonialism permeating, how can these communities—especially ones who may not have access to tangible resources, who may not have access to legal support, who are really in the weeds of these areas, who have lived here for years and years—how can they effectively resist this displacement and this erasure of their identities?

DSS: Well, in many ways. One, to boldly call it out. That's just the start. To do what we've done at Justice for Greenwood and our other organizations, Muscogee Creek Indian Freedmen Band. You don't need to call it out just by yourself because that's not effective. Organize yourself. Find other people that are in a similar situation and organize yourself into your money. This takes money.

HULR: Yes, of course.

DSS: There are only two great powers in the world, regardless of anything else in the last million years. Organize people and organize money. You need to organize yourself with others who are dealing with this issue, or those who want to be supportive, and find some way that you can raise funds so you can tell your story. Tell your narrative. And don't allow your narrative to be co-opted or ignored. It is so key that we can stand up and say who we are. We know our history. We know what we deserve. Find like-minded people that you can work with to make that happen. You can look at examples at Justice for Greenwood and what we're doing, you can look at examples from other groups around the country, but that's what we've done. We've been effectively bringing together, you know, hundreds of people in our descendant network. We've been able to raise funds and create a vibrant organization that's now able to support litigation, support public advocacy, meeting with our elected officials, having phone calls and interviews like this with smart, bright students from Harvard! That's what it takes. That's what it takes.

You gotta have a lot of resilience and stamina. This is, you know, this is not for the faint of heart. This is not something you post on Facebook, Instagram, and TikTok one time and think that that's going to make a difference. I mean, we're fighting. You know, the Creeks, we’re 43, 44 years of this fight and 25 years of my life. I'm only 47. So, for 25 years, since I was 21 years old, I have been on this journey. If you read the Guardian article, you saw my grandmother, Johnnie Mae Simmons.

HULR: Yes.

DSS: You know, she passed away four years ago this month, and so many of our people who were fighting on [our] behalf, are you know, not going to see the finish line. You gotta realize that this is a fight. This is a war. And we cannot be [flinching]. We cannot be scared. We gotta be able to speak truth to power and then put in the effort that is necessary. There’s going to be a lot of loss, there’s going to be a lot of frustration. There’s going to be a lot of obstacles, a lot of odds. But we have to be strong and remember our ancestors went through way more, way less. And they did it and they want us to be free. Freedom is not free.

HULR: Wow, that's a great point to end off on. I want to thank you again for having the conversation with me and for teaching me so much in just 30 minutes. I really, really enjoyed learning from you and hearing about your experience with this issue, so thank you so much.