Alabama, GA – The United States Court of Appeals for the Eleventh Circuit has vacated the district court order dismissing Muscogee Creek Nation vs Poarch Band of Creek Indians. The case will now be reheard in the United States District Court for the Middle District of Alabama.
As previously reported in The Mvskoke News, the lawsuit is the result of a legal battle that began in 2012. The dispute concerns a 34 acre track of land south of Wetumpka, Alabama that is the historical location of the original Hickory Ground ceremonial site.
PBCI acquired the site in 1980, with funding from a federal preservation grant which was subject to a 20 year protective covenant requiring the preservation of the property.
In August of 1983, MCN Principal Chief Claude Cox provided the Department of the Interior a letter endorsing the PBCI for federal recognition, and the MCN formally recognized the PBCI as a distinct and separate band of Muscogee Creek Indians with the passing of NCA 83-32. PBCI acquired federal recognition in 1984, after which the U.S. government took the land into trust for the tribe.
In 1992, MCN would pass NCA 92-153, which suspended the government to government relationship with the PBCI over unspecified actions taken by PBCI at the Hickory Ground site.
The preservation covenant expired in July, 2000. PBCI then began excavating the site alongside archaeologists from Auburn University prior to development of a casino on the site. This excavation was completed in 2011.
While this excavation was underway, the Department of the Interior began to receive letters from the Alabama Historical Commission and others raising concerns about the potential disturbance of cultural artifacts.
A lawsuit was filed in 2001 against PBCI by the City of Wetumpka, Alabama, the Alabama Preservation Alliance, and an individual member of the Muscogee Creek Nation alleging the clearing and excavation of the site would violate the Native American Graves Protection Act, the Archeological Resources Protection Act and the National Historic Preservation Act.
Later that same year, the suit would be dismissed with prejudice at the request of the parties that had filed the suit. Court records do not detail the reason the motion to dismiss was made.
Muscogee Creek Nation was notified of the excavation in 2006, at which point the Nation began efforts to persuade PBCI to cease the excavation. MCN also contacted the National Park Services about their concerns.
Ultimately, MCN was unable to convince PBCI to cease the development and negotiations failed in 2011.
PBCI then reinterred the cultural artifacts found at the site at other locations. PBCI sent a letter notifying MCN and Hickory Ground of the planned reburials on April 4, 2012. The reburials had already been completed when the Nation and Hickory Ground responded 9 days later.
July 2012, PBCI announced the plans to develop the site into the Wind Creek Wetumpka Casino. December of the same year, MCN and Hickory Ground filed suit in the District Court for the Middle District of Alabama, Northern Division.
Construction was completed on the casino in 2014.
The district court dismissed the lawsuit when the Poarch Band claimed sovereign immunity. The Eleventh Circuit found that the district court had improperly applied a blanket sovereign immunity to all the claims listed in the complaint, and ordered that the case be reheard and that the district court perform a claim-by-claim evaluation of sovereign immunity as it applies to Poarch Band officials.
According to the Eleventh Circuit decision,
“the district court erred when it failed to review the Poarch officials’ sovereign immunity claim by claim. Because the complaint and the parties’ arguments make uncertain which remedies are relevant to which claims, the district court must perform that claim- by-claim analysis on remand.”
The MCN and Hickory Ground are represented in the case by Mary Kathryn Nagle (Cherokee). Nagle issued a statement after the decision was released.
“Poarch argued that an unusual exception to Ex Parte Young shielded their officials from accountability under federal laws like the Native American Graves Protection and Repatriation Act and the National Historic Preservation Act. The Eleventh Circuit decisively rejected that argument, underscoring that Poarch’s connection to Hickory Ground is limited. They purchased the land in 1980 with federal preservation funds and promised to protect it. They have no sovereign right to destroy it. This ruling demonstrates that tribal sovereignty is not a license to destroy the sacred places and graves of other sovereign Tribal nations. By protecting the sovereign right of a Tribal Nation to ensure federal laws protecting Indigenous sacred sites and burial grounds are upheld, the Eleventh Circuit is protecting the bedrock foundation of tribal sovereignty.”
Nagle joined Mvskoke Media’s Lawyer’d Up program to discuss the future for the case.
Mvskoke Media will have continuing coverage of this ongoing litigation.
