A suit filed many years ago by the Muscogee Creek Nation against the Poarch Creek tribe for the desecration of their ancient gravesite has been upheld by the court. The Poarch Creek nation was first sued in 2012 but the case was dismissed in 2021 because of sovereign immunity. But on Friday, the Circuit Court of Appeals overturned the ruling and ordered a judge to look into the sovereign immunity claim to determine whether the Muskogee Tribe can sue.

The appeals court has revived a legal battle brought by the Muscogee (Creek) Nation of Oklahoma, accusing another tribe of the desecration of a sacred gravesite during the construction of the Wind Creek Wetumpka Casino. The decision by the 11th Circuit Court of Appeals has granted the Muscogee Nation its day in court, setting the stage for a legal showdown as the tribe seeks justice for its ancestors.

The site in question, known as Hickory Ground, holds deep historical and cultural significance for the Muscogee Nation. Located near Wetumpka, Alabama, this land was the last capital of the Muscogee (Creek) Nation in Alabama before the tribe was forcibly removed and settled in Oklahoma during the 19th century under the federal government's policy of Indian Removal. Hickory Ground serves not only as a physical reminder of the tribe's rich history but also as a sacred burial site for many of their ancestors.

The controversial casino development

In 1980, the Poarch Band of Creek Indians, a tribe distantly related to the Muscogee Nation, purchased Hickory Ground. With the help of a historic preservation grant, the Poarch Band acquired the land under the promise of protecting and preserving its cultural and historical value. However, in the years following the acquisition, the tribe constructed a bingo hall on the site, which eventually expanded into the large-scale Wind Creek Wetumpka Casino that opened in 2014.

The Muscogee Creek Nation claims that the construction of the casino desecrated the sacred burial ground, accusing the Poarch Band of breaking their commitment to preserve the land. Central to their case is the allegation that in 2001, during the initial construction of the bingo hall, 57 sets of their ancestors' remains were not properly removed from their graves, along with numerous burial artifacts. The Muscogee Nation argues that these remains are currently stored at Auburn University in plastic containers, without proper temperature control or ventilation.

The long legal battle

The Muscogee Nation first filed a lawsuit in 2012, when the Poarch Band began expanding their casino on Hickory Ground. Despite the ongoing legal dispute, the Poarch Band moved forward with the casino expansion, leading to the opening of the Wind Creek Casino in 2014. The Muscogee Nation contends that the Poarch Band's actions violated federal laws, including the Native American Graves Protection and Repatriation Act (NAGPRA) and the National Historic Preservation Act (NHPA).

In 2021, a lower court dismissed the Muscogee Nation's case, citing that the Poarch Band of Creek Indians was protected from civil lawsuits due to sovereign immunity, a legal doctrine that shields tribal governments from being sued. However, on Friday, the 11th US Circuit Court of Appeals vacated that ruling, giving new life to the Muscogee Nation's fight to protect the sacred site of Hickory Ground.

A legal path forward: Ex Parte Young doctrine

At the heart of the 11th Circuit Court's ruling is the legal principle derived from the landmark 1908 Supreme Court decision, Ex Parte Young. Under this ruling, lawsuits can proceed in federal courts against state officials who are accused of violating the Constitution or federal laws, even if those officials are protected by sovereign immunity. The Muscogee Nation's lawyers argued that the same legal standard should apply to tribal officials when they are accused of acting unlawfully under federal law.

The appellate panel ordered the lower court to perform a "claim by claim" analysis to determine whether individual officials of the Poarch Band should be protected by sovereign immunity in this case. The ruling allows for a careful examination of whether the Poarch Band's leaders violated federal law and their commitments when they constructed the casino.

A victory for the Muscogee Nation

Mary Kathryn Nagle, a prominent attorney and playwright representing the Muscogee Nation, welcomed the appellate court's ruling. "The Eleventh Circuit decisively rejected [Poarch's] argument, underscoring that Poarch's connection to Hickory Ground is limited," Nagle said in a statement. "They purchased the land in 1980 with federal preservation funds and promised to protect it." Nagle added that they have no sovereign right to destroy it and that the court's decision reaffirms the limitations of tribal sovereignty, especially when it comes to desecrating the sacred sites of another sovereign tribe. "This ruling demonstrates that tribal sovereignty is not a license to destroy the sacred places and graves of other sovereign Tribal nations," she stated.

The Muscogee Nation's case will now return to the lower court for further proceedings, giving the tribe another opportunity to seek justice for what they consider an egregious violation of their cultural heritage.

For now, the 11th Circuit Court's ruling is seen as a critical victory for the Muscogee Nation, who are fighting to protect the burial grounds of their ancestors and preserve a vital part of their heritage.