The US Court of Appeals for the Eleventh Circuit on Friday vacated a previous ruling that dismissed a lawsuit brought by the Oklahoma-based Muscogee (Creek) Nation, which challenged the construction of a casino in Alabama on land they claim as a sacred burial ground.
The three-judge panel ordered the trial judge to conduct a “claim-by-claim” analysis to determine whether officials from Alabama’s Poarch Band of Creek Indians have sovereign immunity, potentially shielding them from the lawsuit. US Circuit Court Judge William Pryor Jr., writing for the majority, said the trial court was “better suited [than the appellate court] to consider on remand whether the Poarch officials enjoy sovereign immunity from any claim.”
Judge Pryor stated:
[T]he district court should permit the Muscogee Nation to amend its complaint to remove the Poarch Band and its gaming authority as defendants and to conform the complaint to the requirements of notice pleading. And the district court, with the benefit of the parties’ arguments about the amended complaint, should consider the Poarch officials’ sovereign immunity claim by claim.
The panel noted that the complaint is unclear about which specific claims seek to declare a Secretary of the Interior decision, which held the Hickory Ground site in trust for the Poarch Band, as void. Judge Pryor stated that while “the complaint seeks that remedy for the claim against the secretary of the Interior…the district court considered that remedy in its analysis of the Poarch officials’ immunity.” He added, “Although the parties agree on appeal that the claim against the secretary is not against the Poarch officials, the inartful drafting of the complaint leaves uncertain whether the Muscogee Nation seeks to void the land’s trust status as a remedy for other claims too.” The panel emphasized that clarity on this issue is crucial because if the Muscogee are seeking the declaration solely as a remedy against the federal government, it has no bearing on the immunity of Poarch officials.
The core of the Muscogee Nation’s argument in urging the Eleventh Circuit to reconsider the lower court’s decision centers on the 1908 Ex parte Young doctrine. The doctrine holds that tribal sovereign immunity does not bar a lawsuit seeking relief against tribal officers accused of violating applicable law. The stance challenges the March 2021 district court ruling, which carved out an exception to the doctrine and dismissed the Muscogee’s suit against the Poarch Band.
George Thompson, mekko (chief) of Hickory Ground and a justice in the Muscogee (Creek) Supreme Court, testified before Congress in 2021 to condemn the desecration of Hickory Ground, a site on the National Register of Historic Places. He revealed that over 57 ancestors were exhumed for casino construction without consulting the Muscogee (Creek) Nation or their descendants, underscoring the deep pain and disregard for their sacred heritage.
The Muscogee Nation first filed a lawsuit against the Poarch Band in 2012, claiming that the band secured grant funding in 1980 to acquire the historic Hickory Ground burial site in southern Alabama under the guise of protecting it from commercial development. However, after the protective covenant on the site expired, the Poarch Band had Auburn University archaeologists exhume the remains.
Hickory Ground was once the homeland of the Muscogee Nation before their forced relocation to Oklahoma along the Trail of Tears. The land today is owned by the Poarch Band, a separate tribal nation that shares Muscogee ancestry, who constructed one of their Wind Creek casinos on the sacred site. The Muscogee Nation filed a lawsuit against Poarch officials, the Department of the Interior, and others, challenging the excavation of ancestral graves and the development of the land and deepening the conflict over its cultural and historical significance.
Muscogee (Creek) Principal Chief David Hill said on Friday that the court’s ruling “is a monumental victory for our nation and for tribal sovereignty as a whole.” Hill added:
The Eleventh Circuit’s decision reaffirms our nation’s sacred and historical ties to Hickory Ground, while also affirming our sovereign right to seek justice against federal agencies and other entities that violated the laws protecting this sacred land. This ruling supports and strengthens the sovereignty of tribal nations by holding that our rights and protections must be respected and upheld under federal law. We are grateful that the court approached this case with the respect and integrity befitting the sanctity of Hickory Ground.
