Muscogee Nation Scores Win in Wind Creek Casino ‘Grave Desecration’ Case

Posted on: October 14, 2024, 04:14h. 

Last updated on: October 15, 2024, 09:35h.

Philip Conneller @casinoorgphilc Read More
Expertise: Gaming Business, Regulation, Tribal Gaming.

A federal appeals court in Atlanta has revived a complaint brought by an Oklahoma-based tribe that accuses a related tribe in Alabama of desecrating a sacred burial ground when it built its casino.

Muscogee Creek Nation, Poarch Creeks, Wind Creek Casino & Hotel, Hickory Ground, appeals court
The Wind Creek Wetumpka Casino in Alabama was built on the site of a sacred Native American burial ground. The 11th Circuit Court has granted the Muscogee Nation its day in court as it seeks justice for its ancestors. (Image: Wind Creek Hospitality)

The land, known as the Hickory Ground, near Wetumpka, Ala., was the Muscogee (Creek) Nation’s (MCN) last capital in Alabama before the tribe was removed to Oklahoma in the 1830s as part of a federal policy of forced repatriation.

In 1980, the land was purchased by the distantly related Poarch Band of Creek Indians, which built a bingo hall that was later developed into the Wind Creek Wetumpka Casino. The Poarch Creeks have been granted sovereignty over the land by the federal government.

MCN claims 57 sets of its ancestors’ human remains and the artifacts buried with them were improperly removed in 2001 during the construction of the bingo hall. These remains are stored without ventilation or temperature control “in plastic bins and boxes” at Auburn University, the tribe claims.

Casino Expansion

MCN first sued in 2012 when the Poarch Creeks sought to expand their casino operations on the Hickory Ground. The development went ahead regardless of the lawsuit, and the Wind Creek Casino opened in 2014.

MCN argues the Poarch Creeks broke a legal promise to protect and preserve the land when they bought it from a private landowner with the help of a historic preservation grant.

In 2021, the lower court dismissed the case on the grounds that the Poarch Creeks were shielded from civil lawsuits by sovereign immunity. But on Friday, the 11th US Circuit Court of Appeals vacated that decision.

The appellate panel ordered the trial judge to do a “claim by claim” analysis of whether individual officials with the Poarch Band have sovereign immunity from lawsuits.

Ex Parte Young

In 1908, in the case known as “Ex Parte Young,” the US Supreme Court ruled that suits can proceed in federal courts against state officials when they are acting in violation of the Constitution or federal law.

That’s despite the state’s sovereign immunity, which would otherwise protect it from civil suits or criminal prosecution. MCN’s lawyers argued that the same standards hold for tribal officials.

Poarch argued that an unusual exception to Ex Parte Young shielded their officials from accountability under federal laws like the Native American Graves Protection and Repatriation Act and the National Historic Preservation Act,” Mary Kathryn Nagle, the celebrated playwright and counsel for MCN said in a statement Friday.

“The Eleventh Circuit decisively rejected that argument, underscoring that Poarch’s connection to Hickory Ground is limited,” Nagle added. “They purchased the land in 1980 with federal preservation funds and promised to protect it. They have no sovereign right to destroy it. This ruling demonstrates that tribal sovereignty is not a license to destroy the sacred places and graves of other sovereign Tribal nations.”