Wind Creek Wetumpka Casino Burial Ground Desecration Lawsuit Dismissed

Posted on: March 17, 2021, 01:22h. 

Last updated on: March 17, 2021, 03:45h.

A federal judge in Alabama has dismissed a lawsuit by the Oklahoma-based Muscogee Creek Nation (MCN). The lawsuit claimed Alabama’s Poarch Band of Creek Indians (PBCI) illegally desecrated a sacred burial site when it built its Wind Creek Wetumpka casino resort.

Wind Creek
The Wind Creek Wetumpka (pictured) was built on a site known as Hickory Ground, which was the last capital of the Muscogee before they were forced westwards along the Trail of Tears. (Image: Wind Creek Hospitality)

MCN originally sued PBCI in 2012. But the suit was paused by the courts, as the two closely related tribes were encouraged to reach a compromise.

In 2019, the MCN filed a revised complaint, demanding PBCI restore the land near Wetumpka, Alabama, known as Hickory Ground “to the greatest extent possible to its pre-excavation and pre-construction condition.”

That meant returning “excavated cultural items to their original burial locations,” and abstaining from “any further ground disturbing, clearing, grading, leveling, or construction activity.”

Tort of Outrage

The lawsuit accused PBCI of breaking a litany of federal laws during the excavation of the land and building of the casino, including the Indian Reorganization Act (IRA), the Native American Graves Protection and Repatriation Act, and the Archaeological Resources Protection Act.

MCN also brought common-law counts of unjust enrichment, promissory estoppel, and the Alabama tort of outrage against PBCI. The plaintiffs demanded that the land be placed into a constructive trust for the MCN as a relief for PBCI’s alleged violation of its promises to the Nation.

In his opinion, US District Judge Myron H. Thompson noted that tribal sovereign immunity usually protects tribes from lawsuits.

But it did not appear that either the Supreme Court or the Eleventh Circuit Court of Appeals had ever decided whether sovereign immunity may be asserted in suits brought by one tribe against another.

Since a Native American tribe is subject to a lawsuit only where Congress has authorized the suit or the tribe has waived its immunity, there was no reason why “inter-tribal litigation should be exempt from the principles of sovereign immunity that govern all other suits against tribes.”

Shared History

Thompson wrote that the court did not question that the plaintiffs had “grave historical, cultural, and religious interests in the treatment of Hickory Ground and those who were buried there.”

“But so, too, does PBCI, as a sovereign entity, have serious interests in not having its capacity to exercise dominion over its lands adjudicated in a federal court without its presence and consent,” he added.

“This land, long owned by PBCI, is a vital part of both the Tribe’s history and its present economy,” Thompson said. “No matter the phrasing of the plaintiffs’ complaint or how the defendants they name are therein denominated, PBCI’s sovereign interest in its ownership and use of Hickory Ground cannot be placed in jeopardy before this court without the Tribe’s consent.”

Hickory Ground was the Muscogee’s last tribal capital before the federal government forced most of the tribe from the eastern US to Oklahoma in 1830, an exodus known as part of the Trail of Tears.

PBCI are largely descended from the Muscogee, who were able to remain in Alabama because they sided with the US in the Creek War of 1813-14. PBCI acquired the 33-acre burial site in 1980 and agreed not to build there for 20 years. The Wind Creek Wetumpka resort opened at the beginning of 2014.