MONTGOMERY, Ala. – The legal battle for justice for Hickory Ground continues at the United States District Court for the Middle District of Alabama. As previously reported, the United States Court of Appeals for the Eleventh Circuit vacated a prior district court order dismissing Muscogee (Creek) Nation v. Poarch Band of Creek Indians.
The Eleventh Circuit decision remanded the case back to the district court and directed the MCN and Hickory Ground to file an amended complaint that addressed each claim and defendant separately.
MCN made a motion in the district court on Jan. 15 to file the third amended complaint. As of publication time, Judge Myron H. Thompson has not issued a decision on the motion.
Mvskoke Media spoke with Hickory Ground’s legal representation in the case, Cherokee lawyer and playwright Mary Kathryn Nagel, about the current state of the lawsuit. Nagel outlined the differences between the most recent complaint and prior complaints filed in the case. Nagel stated:
The biggest difference is that the Eleventh Circuit instructed us to separate out our claims, so that, for instance, if we have a NAGPRA and we also have ARPA claims, and we have a claim under the Indian Reorganization Act, the IRA, that we separate it out claim by claim so we don’t have more than one statute at issue in one claim and not more than one defendant at issue in one claim. So, previously for instance we had a NAGPRA claim and we just listed all the defendants we had NAGPRA claims against in the same claim. It gets a little complicated when you have a case like ours where you have multiple defendants and multiple claims. Especially if the district court’s trying to evaluate what claims it’s going to dismiss, what claims are going to stay in the case. And it’s much easier for the district court to say, ‘Okay, count 12 is gone, count 13 is gone, which is this statute against this defendant, this statute against that defendant.’ And kind of group them out by the Auburn University defendants, the Poarch tribal official defendants, and the federal defendants (which are the federal agencies and individual officials that have been sued)…
We added facts that have taken place since the last complaint that was filed in March of 2020. And so, it’s been five years and we updated on different things that have happened since then, for instance, the fact that Poarch engaged in additional construction at the sacred site in 2023 and refused to even share any kind of documentation with the Nation or Hickory Ground regarding what kind of surveys or what investigations they performed to ensure that this new construction wouldn’t result in further desecration of burial sites or funerary objects or other important cultural resources. Creek Nation was very clear and asked Poarch to not engage in that construction until that investigation could be undertaken, and Poarch refused to do that. Which has been somewhat typical with their conduct to date…
We also added some allegations that relate to the affirmative defense that the Poarch Band Tribal officials are asserting, which is that they are entitled to sovereign immunity under the Coeur D’Alene exception to the Ex Parte Young Doctrine.. The defendants violations of the federal laws that protect Hickory Ground are ongoing. They haven’t ended, right? So the more years this lawsuit keeps going, the more facts we have to talk about, the more issues there are. The claims continue.
The Ex Parte Young Doctrine refers to a United States Supreme Court decision that held that government officials cannot claim sovereign immunity when they enforce unconstitutional laws that harm individuals. The Coeur D’Alene exception refers to a SCOTUS decision that held that the state of Idaho had Eleventh Amendment immunity from a suit brought by the Coeur D’Alene Tribe.
Nagle urged the audience to check out Hickory Ground’s social media on Facebook, X, formerly known as Twitter, as well as Instagram. She shared:
They are posting a lot about Auburn right now, Auburn just denied Mekko Thompson’s request to repatriate as a lineal descendant under NAGPRA and they basically told him, hey unless you can tell us the exact names and the identity of individuals you claim you are related to, you don’t qualify to repatriate these relatives. Of course the absurdity of that is, you know, historically Mvskoke individuals weren’t buried in a white Christian manner, so there is no headstone.
If you would like to view some of the filings in this case, there is a link to the files in the description of the “Lawyer’d Up – MCN vs Poarch Band Update” Youtube episode.
Mvskoke Media will have ongoing coverage of this developing story.
