The Alabama Supreme Court has issued a series of rulings that chip away at the sovereign immunity long claimed by the Poarch Band of Creek Indians and its business enterprises, finding that the tribe can be sued in state civil court when an injured party would otherwise have no way to seek relief.
The court decided three separate civil cases involving the tribe and its commercial operations, all of which had originally been dismissed by lower courts on the grounds that PCI enjoyed sovereign immunity. That legal doctrine treats federally recognized tribes similarly to a sovereign nation, generally shielding them and their business arms from being sued in state or federal court regardless of where the underlying conduct occurred.
Attorneys for the tribe have described that immunity as “extremely broad,” arguing it applies whether disputed conduct takes place on or off the tribe’s reservation lands. Homeowners near Foley got a firsthand look at how sweeping that protection can be earlier this year, after they sued the Creek Indian Enterprises Development Authority, the tribal entity that oversaw construction of the OWA amusement park and resort.
Attorney Jack “Trip” Smalley III, who represented those homeowners, said the case made clear that his clients’ only realistic path to pursue a legal claim against the development authority ran through the tribal court system based in Atmore. Before last week’s rulings, Smalley said the same limitation would likely apply to anyone else trying to sue OWA or its operators over a dispute.
Two of the three cases decided by the state’s high court involved alcohol. One was brought by the family of a man who died from injuries suffered in a car crash after he had been drinking at Wind Creek Casino. The other was filed by a couple who were injured in a wreck caused by an intoxicated tribal employee who had a documented history of alcoholism treatment.
Writing for the majority in the case involving the fatal crash, Justice Glenn Murdock walked through a lengthy history of federal court decisions addressing the sovereign immunity afforded to recognized tribes, several of which have questioned how that immunity should be applied as tribal commercial activity has expanded in recent decades.
Federal courts, including the U.S. Supreme Court, have generally left it to Congress to resolve those lingering questions rather than narrowing tribal immunity through case law. Murdock’s opinion acknowledges that pattern but does not follow it in the two alcohol-related cases. Instead, the court declined to extend immunity to the tribe’s businesses “in the interest of justice,” reasoning that tribes operating in Alabama are required to follow state alcohol sales laws and that, without the ability to sue in state court, the plaintiffs would have had no other avenue for relief.
All three cases leaned on an argument similar to one the state of Alabama itself raised in 2011, when it unsuccessfully tried to enforce state gambling laws on the federal trust land that houses PCI’s gaming operations. At the time, then-Attorney General Luther Strange contended that the land had never been properly taken into federal trust, meaning it should not qualify as “Indian land” exempt from Alabama’s gambling restrictions.
That argument rests on the U.S. Supreme Court’s 2009 decision in Carcieri v. Salazar, which held that the Indian Reorganization Act of 1934 only authorized the Interior Department to take land into trust on behalf of tribes that were already under federal jurisdiction at that time. Alabama argued the ruling meant federal officials had no authority to place land in trust for the Poarch Band, since the tribe was not formally recognized by the federal government until 1984. A federal appeals court ultimately rejected the state’s challenge, ruling Alabama had missed the six-year window to dispute the trust designation under the Administrative Procedures Act.
Of the three cases decided last week, only one directly grappled with the Carcieri precedent: a lawsuit filed by Jerry Rape, who claimed he was denied a $1.4 million payout after playing electronic bingo at a Poarch Band casino. The tribe argued Rape’s claim should be barred for missing the same filing deadline that doomed the state’s earlier challenge. The justices disagreed, with Murdock writing that Rape had no way of knowing the land was being placed in trust back in the 1980s and therefore no reason to have raised a timely challenge under federal administrative law.
Even so, the court upheld a Montgomery County judge’s decision to dismiss Rape’s lawsuit on sovereign immunity grounds. In doing so, the justices acknowledged there remain “genuine questions” about the validity of the tribe’s trust lands in light of the Carcieri ruling. Murdock noted that in its own federal recognition application, the Poarch Band had acknowledged lacking any “formal political organization” for much of the 19th and 20th centuries, raising doubt about whether it could be considered a tribe “under federal jurisdiction” in 1934, as Carcieri requires.
“Were we to conclude that the lands on which the wrongs occurred were not properly taken into trust and therefore were not properly considered ‘Indian country,’ this would mean that those lands remain fully within the political jurisdiction of the state,” Murdock wrote in the opinion. “The activity out of which Rape’s claim arose, however, was gambling, and if it occurred on land within the regulatory and adjudicative jurisdiction of the state of Alabama, that activity was illegal.” Because Rape could not prevail either way, the court let the dismissal of his case stand.
The Poarch Band has publicly insisted its gaming properties sit on land properly classified as Indian country, and the tribe has spent more than $1 million over the past three years lobbying state lawmakers to pass legislation reaffirming that status.
Attorney Brian Murphy, who represented the plaintiffs in one of the alcohol-related lawsuits, said the tribe could still appeal the rulings to the U.S. Supreme Court, but that the uncertainty stemming from the Carcieri decision is likely to persist regardless of the outcome. Murphy noted that the state court’s reasoning did not hinge on Carcieri at all in his case, but instead concluded that the broader concept of tribal immunity traced back to a handful of older court opinions that, in the justices’ view, offered no substantive legal basis for the protection.
Representatives for the Poarch Band of Creek Indians did not respond to requests for comment on the rulings.