Court Revives Muscogee Nation’s Fight Against Alleged Burial-Site Desecration by Alabama Tribe

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A federal appeals court in Atlanta has breathed new life into a complaint filed by an Oklahoma-based tribe, accusing an Alabama-related tribe of desecrating a sacred burial ground during the construction of its casino.

The dispute centers around the Wind Creek Wetumpka Casino in Alabama, built on a burial site significant to the Muscogee (Creek) Nation (MCN). The 11th Circuit Court of Appeals has granted the Muscogee Nation the opportunity to take their case to court, seeking justice for their ancestors.


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Hickory Ground, the land in question near Wetumpka, Alabama, was the Muscogee Nation’s final capital before their forced relocation to Oklahoma in the 1830s, under a federal repatriation policy. In 1980, the Poarch Band of Creek Indians, who are distantly related to the Muscogee Nation, purchased the land and initially built a bingo hall, which later evolved into the Wind Creek Wetumpka Casino. The federal government has granted the Poarch Creeks sovereignty over this land.

MCN asserts that the remains of 57 of their ancestors, along with artifacts, were improperly removed in 2001 during the bingo hall’s construction. According to the tribe, these remains are currently stored without proper ventilation or temperature control at Auburn University, housed in plastic bins and boxes.

The Muscogee Nation first took legal action in 2012, aiming to halt the Poarch Creeks from expanding their casino operations on the Hickory Ground. Despite the ongoing lawsuit, the development proceeded, and the Wind Creek Casino opened its doors in 2014. MCN contends that the Poarch Creeks violated a legal promise to protect and preserve the land, a pledge made when they acquired it from a private landowner using a historic preservation grant.

In 2021, a lower court dismissed the case, citing the Poarch Creeks’ sovereign immunity from civil lawsuits. However, last Friday, the 11th U.S. Circuit Court of Appeals overturned that decision. The appellate panel has now directed the trial judge to perform a “claim by claim” analysis to determine if specific officials within the Poarch Band possess sovereign immunity against lawsuits.

In legal terms, the case recalls “Ex Parte Young,” a 1908 Supreme Court ruling allowing federal courts to hear lawsuits against state officials who violate the Constitution or federal law, even if sovereign immunity would typically shield them. MCN’s lawyers argued that this principle should apply to tribal officials as well.

The Poarch Band contended that an exception to Ex Parte Young protected their officials from accountability under federal laws such as the Native American Graves Protection and Repatriation Act and the National Historic Preservation Act. But MCN’s attorney, Mary Kathryn Nagle, argued successfully that this exception did not apply, with the 11th Circuit decisively rejecting the Poarch Band’s argument.

Nagle emphasized that, having purchased the land with federal preservation funds and promising to safeguard it, the Poarch Creeks have no sovereign right to desecrate it. The latest ruling underscores that tribal sovereignty does not grant the authority to destroy sacred sites and graves belonging to other sovereign tribal nations.