Muscogee (Creek) Nation v. Poarch Band of Creek Indians

• Decision Date: 15 March 2021
• Docket Number: CIVIL ACTION NO. 2:12cv1079-MHT
• Citation: 525 F.Supp.3d 1359
• Parties: MUSCOGEE (CREEK) NATION, a federally recognized Indian tribe, et al., Plaintiffs, v. POARCH BAND OF CREEK INDIANS, a federally recognized Indian tribe, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

525 F.Supp.3d 1359

MUSCOGEE (CREEK) NATION, a federally recognized Indian tribe, et al., Plaintiffs,

v.POARCH BAND OF CREEK INDIANS, a federally recognized Indian tribe, et al., Defendants.

CIVIL ACTION NO. 2:12cv1079-MHT

United States District Court, M.D. Alabama, Northern Division.

Signed March 15, 2021

Lauren J. King, Foster Garvey PC, Seattle, WA, Stewart Davidson McKnight, III, Dillard, McKnight, James & McElroy LLP, Birmingham, AL, for Plaintiffs.

Catherine F. Munson, Pro Hac Vice, Kilpatrick Townsend & Stockton LLP, Washington, DC, Charles Alexander Dauphin, Dauphin Paris LLC, Vestavia Hills, AL, Mark H. Reeves, Pro Hac Vice, Kilpatrick Townsend & Stockton LLP, Augusta, GA, for Defendants Billy Smith, Poarch Band of Creek Indians, Stephanie A. Bryan, Robert R. McGhee, Sandy Hollinger, Keith Martin, Arthur Mothershed, Garvis Sells, Eddie L. Tullis, Buford Rolin, David Gehman, PCI Gaming Authority, Timothy A. Manning, Tribal Defendants.

Mark H. Reeves, Kilpatrick Townsend & Stockton LLP, Augusta, GA, for Defendants Amy Bryan, Charlotte Meckel, Dewitt Carter, Larry Haikey, Westly L. Woodruff, Teresa E. Poust.

Dennis Mitchell Henry, Frank Eady Bankston, Jr., Webster Henry Bradwell Cohan Speagle & Deshazo PC, Montgomery, AL, for Defendant Martin Construction, Inc.

Devon Lehman McCune, US DOJ Environmental & Natural Resources, Denver, CO, James Joseph DuBois, U. S. Attorney's Office, Montgomery, AL, Jody Helen Schwarz, U.S. Department of Justice, Environment and Natural Resource, Washington, DC, for Defendants The Department of the Interior, Tara MacLean Sweeney, David Bernhardt, Federal Defendants.

Devon Lehman McCune, US DOJ Environmental & Natural Resources, Denver, CO, for Defendant David Vela.

David Randall Boyd, Jordan Dorman Walker, Jr., Griffin Lane Knight, Balch & Bingham LLP, Montgomery, AL, Jaime Stone Hammer, Morgan Mccue Sport, Auburn University, Auburn, AL, for Defendant Auburn University.

OPINION

Myron H. Thompson, UNITED STATES DISTRICT JUDGE

This dispute concerns the use and ownership of a 34-acre tract of land south of Wetumpka, Alabama. The land sits at Hickory Ground, the last capital of the Creek Nation before the Tribe was forced from the eastern United States in the 1830s, an exodus known as the Trail of Tears. Burial sites and ceremonial grounds dot the area, which in 1980 was placed on the National Register of Historic Places as a site of national significance. Today the land is held by the United States Department of the Interior in trust for Poarch Band of Creek Indians ("PBCI"), and it is the location of PBCI's Wind Creek Wetumpka casino and hotel. The excavation of the land and the construction and operation of the Wind Creek Wetumpka are the subject of this litigation.

The three plaintiffs who bring this suit are the Muscogee (Creek) Nation; the Hickory Ground Tribal Town, which is now located in Oklahoma; and George Thompson, the chief, or "Mekko," of the tribal town. They filed the original complaint in this suit in 2012. In the operative second amended complaint, filed in March 2020 after the case had been stayed pending unsuccessful settlement negotiations, the plaintiffs have named three groups of defendants. The "Federal Defendants" consist of the Interior Department, the National Park Service, the Bureau of Indian Affairs, and the officials who head each of those entities. The "Tribal Defendants" consist of PBCI; the PCI Gaming Authority, a commercial enterprise of PBCI that operates the Wind Creek Wetumpka; various officials on the PBCI Tribal Council and the Board of PCI Gaming Authority, who are sued in their official capacities; and the PBCI Tribal Historic Preservation Officer, who is sued in his official capacity. The "Individual Defendants" consist of former and current members of the PBCI Tribal Council, who are sued in their individual capacities. The plaintiffs have also sued Auburn University, which has not moved to dismiss the plaintiffs’ second amended complaint.¹

The second amended complaint raises eleven claims, most of them alleging violations of federal statutes: the Indian Reorganization Act, or IRA, 25 U.S.C. § 5101 ; the Native American Graves Protection and Repatriation Act, or NAGPRA, 25 U.S.C. § 3001 ; the Archaeological Resources Protection Act, or ARPA, 16 U.S.C. § 470aa ; the Religious Land Use and Institutionalized Persons Act, or RLUIPA, 42 U.S.C. § 2000cc ; the Religious Freedom Restoration Act, or RFRA, 42 U.S.C. § 2000bb ; and the National Historic Preservation Act, or NHPA, 54 U.S.C. § 300101. Some of these claims are denominated as dependent on the court's resolution of the plaintiffs’ IRA claim, the first count of their complaint. The plaintiffs also bring common-law counts of unjust enrichment, promissory estoppel, and the Alabama tort of outrage, the last of which they say applies only if the court rules in their favor on the IRA claim. This tort-of-outrage claim is the only count brought against the Individual Defendants. With these claims, the plaintiffs seek, inter alia , to have Hickory Ground taken out of trust for PBCI and placed in a constructive trust for them, to have federal preservation grants to PBCI for the site ceased, to prevent the Tribal and Federal Defendants from undertaking any further clearing or construction on the Hickory Ground site, and to require that the Tribal Defendants "cause the Hickory Ground Site to be returned to the condition it was in prior to the construction of the casino resort." Second Amended Complaint (Doc. 79) at 76-79. They do not seek damages, except from the Individual Defendants for the tort-of-outrage claim if applicable.

This case is now before the court on the separate motions of the Federal Defendants, the Tribal Defendants, and the Individual Defendants to dismiss the plaintiffs’ claims under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1362 (federal-law claims brought by Indian Tribes), 1367 (supplemental jurisdiction), and 25 U.S.C. § 3013 (NAGPRA). As explained below, the court finds that the Tribal Defendants, including the tribal officials named in their official capacities, are immune from this suit and must be dismissed. Without the Tribal Defendants present, the remaining claims cannot be adjudicated under the precepts of Rule 19 of the Federal Rules of Civil Procedure. The Tribal Defendants’ motion to dismiss will accordingly be granted, the motions of the Federal and Individual Defendants will be denied as moot, and this suit will be dismissed.

I. FACTUAL BACKGROUND

The court at this stage must accept as true the factual allegations of the second amended complaint. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). According to those allegations, Hickory Ground is a site of longstanding cultural, religious, and political importance for the Muscogee (Creek) Nation, believed to date back to the nation's original tribal town "at the time of the beginnings." Second Amended Complaint (Doc. 190) at ¶ 46. Perhaps most importantly for present purposes, the area contained ceremonial grounds and a number of burial sites and individual graves, some within the ceremonial grounds and some beneath the family homes of the dead. These graves held human remains and funerary objects of deep significance to the plaintiffs, and the graves were situated in specific places within Hickory Ground based on the position held by the deceased individual in the town's governance structure.

The plaintiffs explain that it is their "long-established religious belief that burial and ceremonial grounds are sacrosanct and must not be entered, let alone disturbed, without the proper religious protocol." Id. at ¶ 55. In accordance with these religious beliefs, the plaintiffs hold "that their ancestors must be left at peace in their final resting places with their possessions," and that the plaintiffs "owe a religious duty to their ancestors to care for the graves and bodies of the deceased." Id. at ¶¶ 56-57.

PBCI acquired Hickory Ground in 1980 with funding from a federal preservation grant, subject to a 20-year protective covenant requiring preservation of the property. In 1984, the Interior Department took the land into trust for PBCI, following the recognition of PBCI's tribal status by the United States government earlier that year. See Trust Deed (Doc. 203-2) at 1.² Shortly after the protective covenant expired in July 2000, PBCI began excavating the site alongside archaeologists from Auburn University to gather information about the cultural artifacts buried at Hickory Ground prior to development of the area. The excavation was completed in 2011.

In the meantime, the Alabama Historical Commission and others began in 2001 to write letters to the Interior Department and the Bureau of Indian Affairs raising concerns about potential disturbance of the cultural artifacts at Hickory Ground in the course of PBCI's excavation. The City of Wetumpka, the Alabama Preservation Alliance, and an individual member of the Creek Nation filed suit against PBCI in 2001, making many of the same allegations reiterated in the present suit, including that the then-planned excavation and clearing of the site would violate NAGPRA, ARPA, and the NHPA. See generally First Amended Complaint (Doc. 20), City of Wetumpka v. Norton , No. 01-cv-1146-WHA (M.D. Ala. Nov. 9, 2001). The suit was dismissed with prejudice shortly thereafter by request of the plaintiffs. See Order (Doc. 22) at 1, City of Wetumpka , No. 01-cv-1146-WHA (M.D. Ala. Nov. 21, 2001) (Albritton, C.J.).

According to the operative complaint in this case, the plaintiffs here were first notified of the excavation sometime in 2006. See Second Amended Complaint (Doc. 190) at ¶ 137. The plaintiffs then "engaged in a years-long effort to persuade [PBCI] not to excavate and desecrate the remains of Plaintiffs’ ancestors and other cultural items and to return...