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Poarch Creeks win ruling in dispute over taxation of trust lands

Tuesday, July 12, 2016

The Poarch Band of Creek Indians has announced plans to replace a building that originally housed its council chambers and health department. Photo from Facebook

The Poarch Band of Creek Indians won a major court decision on Monday confirming that its trust lands cannot be taxed by officials in Alabama.

The ruling was unanimous. The tribe's reservation is protected by the Indian Reorganization Act, which bars state and local taxation of Indian lands, the 11th Circuit Court of Appeals concluded.

But in an equally important holding, the 11th Circuit refused to undermine the legality of the reservation itself. Relying on the U.S. Supreme Court decision in Carcieri v. Salazar, Escambia County Tax Assessor James Hildreth -- who has since retired -- claimed the land was illegally placed in trust because the tribe was not "under federal jurisdiction" in 1934.

The tribe gained federal recognition in 1984, long after the date contained in the Supreme Court's disastrous ruling. But the 11th Circuit said Hildreth long ago missed his chances to complain because he personally was aware that the Bureau of Indian Affairs placed the lands at issue in trust in 1985, 1992 and 1995.

"The record in this case similarly reflects that Hildreth, like the State of Alabama in PCI Gaming, was well aware of the Secretary’s decision to take the Poarch Band’s property into trust close in time to the decision—he made a written inquiry of the Secretary in 1986 regarding the effect of the conveyance," the court wrote, citing its September 2015 decision in Alabama v. PCI Gaming Authority, in which Attorney General Luther Strange was barred from using the Carcieri decision against the state's only federally recognized tribe.

"To recognize an exception and permit a collateral challenge nearly 30 years later, where the record clearly reflects that Hildreth could have raised a timely challenge but did not, would turn PCI Gaming on its head," the court added.

Members of the Muscogee Nation traveled to Alabama to protest the presence of a $250 million gaming facility at Hickory Ground, a historic Creek town and burial site. Photo from Save Hickory Ground / Facebook

The decision comes at a fortuitous time. The tribe has asked Congress to pass H.R.5486, the Poarch Band of Creek Indians Land Reaffirmation Act, to clear up any lingering doubts about the status of its reservation.

Now that the 11th Circuit has twice ruled for the tribe, the bill may not be seen as completely necessary. But passage would protect the reservation from yet another lawsuit that relies on Carcieri.

The Muscogee Nation of Oklahoma argues that the Poarch Creek Reservation was not legally placed in trust in a lawsuit that was filed in December 2012. The Muscogees say H.R.5486 undermines their efforts to protect Hickory Ground, a historic Creek town and burial site in Alabama.

“In relationship to the bill… it’s a one tribe, one fix solution disregarding the interests of all other tribes of the country and we oppose that,” Muscogee Nation Chief James Floyd told Muscogee Nation News, the tribe's official news outlet.

The bill has yet to receive a hearing in the House. But even if it does not move forward, the 11th Circuit's latest decision poses big hurdles for the Muscogee Nation because the tribe does not appear to have formally challenged the status of the Poarch Creek Reservation either.

The lawsuit was filed as the Poarch Creeks completed work on a $250 million gaming facility at Hickory Ground. The site is located within reservation boundaries.

Turtle Talk has posted documents from the case, Poarch Band of Creek Indians v. Hildreth.

11th Circuit Court of Appeals Decisions:
Poarch Band of Creek Indians v. Hildreth (July 11, 2016)
Alabama v. PCI Gaming Authority (September 3, 2015)