The Alabama Supreme Court last week issued rulings in three civil cases involving the Poarch Band of Creek Indians and its business enterprises, concluding that the tribe, despite having sovereign immunity, can be sued civilly if an injured party has no other option for relief.

In one of the cases, justices also acknowledged “genuine questions” about the validity of PCI’s federally recognized trust lands in the wake of a 2009 ruling of the United States Supreme Court.

Each of the cases challenged PCI’s right to invoke sovereign immunity, which — in a legal context — means the tribe and business arms are treated as a sovereign state or nation and, thus, can’t be sued in state or federal court.

All three of the cases were originally dismissed on the grounds of sovereign immunity.

According to PCI’s own attorneys, tribal sovereign immunity is “extremely broad,” and applies whether the conduct in question “occurred on or off of the tribe’s reservation lands.” Residents in Foley got a crash course in sovereignty earlier this year after suing the Creek Indian Enterprises Development Authority (CIEDA), which oversaw development of the OWA amusement park.

Attorney Jack “Trip” Smalley III, who represented the homeowners, told Lagniappe the only way his clients could proceed with any legal claim against CIEDA would be through the “tribal court” system in Atmore. Prior to the rulings last week, Smalley said the same would likely be true for anyone attempting to sue OWA or its operators in the future.

Of the lawsuits the court ruled on last week, two involved alcohol — one filed by the family of a man who died from injuries sustained in an auto accident after drinking at Wind Creek Casino, and a second by a couple injured in an accident caused by an intoxicated PCI employee with a history of alcoholism treatment.

Penned by Justice Glenn Murdock, a majority opinion in the former case discusses several previous federal decisions about the sovereign immunity enjoyed by recognized Indian tribes — a number of which have questioned how tribal immunity should be applied given the growth of commercial activity among tribes in recent decades.

Despite those concerns over tribal immunity, the U.S. Supreme Court has consistently deferred to Congress to alleviate them — a doctrine Murdock’s opinion makes note of but does not appear to adhere to in the recent PCI cases.

Instead, “in the interest of justice,” the court declined to extend immunity in both alcohol-related cases because Indian tribes are required to follow state laws governing alcohol sales, and because — if the lawsuits weren’t allowed to move forward in state court — the plaintiffs would have “no other avenue for relief.”





Notably, all three cases reviewed used an argument similar to one Alabama raised in a 2011 lawsuit that unsuccessfully attempted to enforce state gambling laws on federal trust lands housing PCI’s gaming operations.

At the time, Attorney General Luther Strange argued the lands weren’t properly taken into trust by the U.S. Department of the Interior, which is necessary to declare them as “Indian lands” and gain exemption from Alabama’s prohibitive gambling laws.

The argument relies entirely on the U.S. Supreme Court’s 2009 ruling in Carcieri v. Salazar, which concluded the Indian Reorganization Act of 1934 only authorized the Interior Secretary to take lands into trust for tribes under federal jurisdiction at that time.

Alabama claimed the ruling meant the secretary of the interior wasn’t authorized to take lands into trust for PCI because it wasn’t federally recognized until 1984.

The Carcieri case started as a challenge under the Administrative Procedures Act (APA) to a decision made by an administrative department, which has a six-year statute of limitations. Ultimately, a federal appeals court concluded that in order to challenge the validity of PCI’s land holdings the state needed to have done so within that six-year timeframe as well.

While the recent state cases raised similar arguments, Alabama’s high court only discussed the Carcieri case in its ruling on a lawsuit filed by Jerry Rape, who claimed he was denied $1.4 million he won playing electronic bingo at a PCI casino.

The tribe argued Rape’s challenge should have been thrown out for the same reasons the state’s was, but the court disagreed. Unlike the state, Murdock wrote that Rape didn’t know PCI was having lands taken into trust in the 1980s and would have had no reason to raise an APA challenge if he had.

While the court upheld a Montgomery County judge’s decision to dismiss Rape’s case on the grounds of sovereign immunity, it acknowledged that there have been some “genuine questions” raised about PCI’s trust lands because of the Carcieri ruling.

Murdock noted in its own application for federal recognition that PCI acknowledged having “no formal political organization” in the 19th century nor in much of the 20th century. Based on that, he said it’s difficult to see how a tribe existed that was ‘under federal jurisdiction’ in 1934.

Ultimately, the court upheld the dismissal because it saw no way for Rape to prevail in arguing that PCI lacked sovereign immunity to shield it from his lawsuit.

“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. “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.”

While PCI has publicly maintained its gaming facilities are on properties “properly considered Indian lands,” the tribe has also spent well over $1 million in the past three years lobbying in support of legislation that would “reaffirm” that fact.

Attorney Brian Murphy represented the plaintiff in one of the alcohol-related cases against PCI, and while the tribe could appeal last week’s outcome to the U.S Supreme Court, Murphy said the uncertainty created by the Carcieri ruling would likely remain.

“The court did not rely on Carcieri in reaching its decision,” Murphy said. “Instead, [it] concluded that the concept of tribal immunity only arose as a result of a few misinterpreted court opinions from many years ago, none of which offered any substantive basis to support such immunity.”

Calls to PCI seeking comment on the recent court rulings were not returned.