January 24, 2017

Briefs in support of dismissal of Muscogee Creek Nation, et al. v. Poarch Band of Creek Indians, et


The Poarch Band of Creek Indians (PBCI), through their legal counsel of Kilpatrick Townsend & Stockton, LLP, filed a motion to dismiss the Muscogee Creek Nation, et al. v. Poarch Band of Creek, et al., Case 2:12-cv-01079-MHT-CSC Document 76 Filed 02/06/13, in the Alabama Middle District Court on February 6, 2013. You can read the Court Filing at PBCI MTD Brief.

PBCI motion is support of their claim of tribal sovereign immunity because PBCI is a federally recognized Indian tribe eligible for special services and programs provided by the United States by virtue of their status as Indians and PCI Gaming is a tribal enterprise wholly owned by PBCI that is charged with the conduct of gaming activity on PBCI lands.

In 1980, PBCI acquired property in the vicinity of Wetumpka, Alabama (the Wetumpka property) that is sometimes referred to as Hickory Ground. The Wetumpka property contains a ceremonial ground, and human remains have been discovered on the property.

In 1984, PBCI was recognized as a tribal governmental by the United States and, like other federally recognized tribes, is eligible for special services and programs provided by the United States to Indians by virtue of their status as Indians. That same year, the United States accepted title to the Wetumpka property into trust for PBCI. Id. PBCI, through PCI Gaming, for some time has operated a gaming facility at the Wetumpka property pursuant to its inherent sovereign authority as recognized in the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701, et al.

However, at the heart of this case lies the potential violation of the Native American Graves Protection and Repatriation Act (NAGPRA), Pub. L. 101-601 (November 16, 1990), 25 U.S.C. 3001 et seq., 104 Stat. 3048. NAGPRA provides guidance and rights of tribes to makes decisions regarding graves and culturally significant artifacts from excavation by returning the remains to the either the ownership or control of Native American cultural items which are excavated or discovered on Federal or tribal lands. Priority is determined in the order of the lineal descendants of the Native American; or in any case in which such lineal descendants cannot be ascertained, in the Indian tribe or Native Hawaiian organization on whose tribal land such objects or remains were discovered, in the Indian tribe or Native Hawaiian organization which has the closest cultural affiliation with such remains or objects and which, upon notice, states a claim for such remains or objects.

The Tribe that can show a preponderance of evidence that it has a stronger cultural relationship with the remains or objects than the tribe or organization who presently own the land upon which the remains were found, after serving notice, can state a claim for such remains or objects and is entitled to determine the fate of the grave and any artifacts.

From this point, one key issue has clearly risen from the argument presented by either party. The land is a sacred burial site and has spiritual and cultural significance. It's somewhat difficult to ascertain how this case will go. It is astounding that for many hundreds of years, we have joined together to preserve our way of life against non-Indians invading and taking our land. Now, throughout the country, we are fighting each other and the focus has shifted away from the true and greater problems. In Arizona, tribes are fighting. In Michigan, tribes are fighting. In California, tribes are fighting. And in Oklahoma and Alabama, tribes are fighting. And what are most of these fights about? Indian Gaming and all that it brings, negative and positive. Burial grounds of our people should never be something to fight or argue over.

Furthermore, it will be difficult to determine factually who is or was buried at Hickory Ground. Even all the more important to think about. Is it possible that  Poarch Band of Creek Indians and Muscogee Creek Nation both have ancestral ties to Hickory Ground burial grounds? If so, or even remotely possible, why would either chance removing the graves just to construct a gaming operation on the property?

We are beginning to see good gains nationally and politically. Not all we want, but we now have ears listening to us and the infighting only reinforces non-Indian beliefs that we can't manage our affairs. We have to remember, all of us were here before anyone else got here. And we lived a good life together mostly. We need to come back together as one if we want to be effective.

Jay Daniels has 30 years of experience working in Indian Country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at http://roundhousetalk.com.